Babet & Anor v Commonwealth of Australia; Palmer v Commonwealth of Australia

[2025] HCATrans 5

[2025] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B73 of 2024

B e t w e e n -

RALPH BABET

First Plaintiff

NEIL FAVAGER

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Brisbane  No B74 of 2024

B e t w e e n -

CLIVE FREDERICK PALMER

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 FEBRUARY 2025, AT 9.59 AM

Copyright in the High Court of Australia

____________________

MR D.F. VILLA, SC:   If it please the Court, in both those matters I appear with my learned friends MS S. PALANIAPPAN and MR P.F. SANTUCCI for the plaintiffs.  (instructed by Alexander Law)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear in both matters with MR B.K. LIM and MS C. ERNST for the defendant.  (instructed by Australian Government Solicitor)

MS J.E. DAVIDSON:   May it please the Court, I appear on behalf of the Attorney‑General for the State of New South Wales, intervening in the Babet matter with my learned friend MS A.R. SAPIENZA.  (instructed by Crown Solicitor for NSW)

GAGELER CJ:   Thank you, Ms Davidson.  Yes, Mr Villa.

MR VILLA: As your Honours know, we are concerned with the validity of section 135(3) of the Commonwealth Electoral Act 1918 (Cth). Can I take your Honours to that Act, which can be found behind tab 4 of the joint book of authorities.

GAGELER CJ:   Mr Villa, we will be working from a compilation, so do not give us the page numbers in the joint book, please.

MR VILLA:   I will not.  Thank you, your Honour.  Your Honours, can I begin firstly with section 4, which contains a number of definitions that are relevant to the scheme of registration of political parties.

Your Honours will first see the definition of “Political party” which means an “organization” which is itself broadly defined on the preceding page and includes an unincorporated body of persons.  A political party is an organisation which includes among its:

objects or activities . . . the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it.

In the documents in the special case there is a copy of the Constitution which establishes that the United Australia Party has the promotion of candidates as one of its objects and, as we apprehend it, there is no dispute that the UAP satisfies that description.  Your Honours will then see the definition of “registered political party” which simply provides that it is:

a political party that is registered under Part XI.

Part XI itself, your Honours, contains some definitions in section 123.  Can I begin with the definition of “parliamentary party”.  That is:

a political party at least one member of which is a member of the Parliament of the Commonwealth.

That description is satisfied by Senator Babet being a member of both the United Australia Party and of the Senate.  The other relevant definition, your Honours, is that of an “eligible political party”.  One feature that is common to all eligible political parties is that they be:

established on the basis of a written constitution . . . that sets out the aims of the party.

Your Honours, that document appears in the documents attached to the special case.  Again, there is no dispute that the United Australia Party satisfies that requirement.  Within the universe of eligible political parties, there are two different categories.  One is the parliamentary party, of which the UAP is one, and the other is a political party that:

has at least 1,500 members –

That is what I suppose we would now call the 1,500 rule, but that is the 500 rule that was in play in Mulholland, which I will take your Honours to in due course.

The question of what eligible political parties are eligible for is answered by section 124.  Your Honours will see, from section 126, there is a process for application for registration in the register, which the Electoral Commissioner is required to keep under section 125.  Subsection 126(1) describes who may make such an application for registration.  In the case of the United Australia Party, the relevant provision is (1)(a)(ii), the application in this case having been made by Senator Babet as the sole parliamentary member of the UAP.

The content requirements of the application are provided for by subsection (2).  Can I draw your Honours’ attention specifically to the matters identified in paragraphs (a) through to (c), which require the application to identify the name of the political party, any abbreviation that the party wishes to use for the purposes of the Act, as well as any logo that the party wishes to have entered upon the register.

Your Honours will see, also, paragraph (d).  We can skip over (ca), your Honours, because, being a parliamentary party, the UAP did not need to include a list of the 1,500 members as part of the application.  Paragraph (d) requires an indication of:

whether or not the party wishes to receive moneys –

that are payable under Division 3 of Part XX of the Act, which is the regime that provides for public funding to political parties or candidates that achieve a certain degree of success in elections, measured by reference to the percentage of first preference votes.  Your Honours, in terms of the course that your Honours may take in determining this case, can we draw attention to section 127?  That section prevents the Electoral Commission from taking any act:

in relation to any application for the registration of a political party –

once the writs have been issued for the election.  Can I, in that context, skip over to section 132 which sets out the procedure for dealing with such an application?  Again, this is of some practical relevance because of the requirement under subsection (7) that notice of the application be published and that:

a period of at least one month has elapsed after the date of publication of notice of the application on the Electoral Commission’s website –

before the Electoral Commission can register a political party.  Can I take your Honours back to section 129.  Subsection (1) requires the Electoral Commission to refuse an application to register certain names or abbreviations.  Your Honours will see at paragraph (c), the Electoral Commission must refuse to register a name that is the name of:

a recognised political party –

Your Honours will see the definition of “recognised political party” in subsection (2).  They are either “a Parliamentary party” or what is described as “a registered party”.  It does not used the defined registered political party term, but we would submit that that is what that is a reference to, or a party that is:

registered . . . for the purposes of the law of a State or a Territory relating to elections –

et cetera.  So, for the scheme of the Act, again, the United Australia Party is a recognised political party.  Paragraph (1)(d) requires the Electoral Commission to refuse to register a name that:

so nearly resembles the name . . . of . . . a recognised political party that it is likely to be confused with or mistaken for –

the name of that recognised political party.  Subparagraph (da) requires the Electoral Commission to refuse to register the Electoral Commission to refuse to register a name:

that a reasonable person would think suggests that a connection or relationship exists between the party and a registered party if that connection or relationship does not in fact exist –

BEECH-JONES J:   Mr Villa, can I just ask you one question about 127?  Do you say the effect of 127 is that even if you succeeded in your challenge to 135(3), that the UAP could not be registered after the writs have been called for the election?

MR VILLA:   Yes.  In fact, I think the proposition goes further.  The Electoral Commission could not take any steps on the road to ‑ ‑ ‑

BEECH‑JONES J:   Registration.

MR VILLA:   ‑ ‑ ‑ registration.

BEECH‑JONES J:   Sorry, I interrupted you.  Where were you, Mr Villa?

MR VILLA:   I was dealing with the names that could not be registered by the Electoral Commission under section 129(1).  Your Honours will see there are similar provisions in relation to party logos provided for in section 129A.  I do not need to take your Honours through the detail of that provision, but they have a similar effect.

Your Honours, once the Electoral Commission is satisfied that the political party should be registered, it is registered under section 133.  I have taken your Honours to some of the procedural provisions in 132 relating to notification.  There are other provisions, of course, that enable the making of objections once the notice has been publicised and provides for the Electoral Commission to deal with those objections.  I do not need to delve into the detail of those, but just so your Honours are aware that there is that additional temporal difficulty in the event that there were objections that needed to be dealt with.

Can I then, your Honours, come to the provisions dealing with deregistration.  The first of those is the section with which this case is most immediately concerned, section 135.  Your Honours will see that the effect of subsections (1) and (2) is that the Electoral Commission is required to deregister a registered political party where the commission is requested to do so in writing by one of the persons who would be entitled to make an application for registration of the political party.

The prohibition on registration with which we are concerned appears in subsection (3).  It has two components.  One is that it prevents registration of the United Australia Party until after the next election.  Your Honours, on its proper construction, that must mean it prevents the registration of the United Australia Party under any name.

It also prevents the registration of any other party with a name that so nearly resembles the name “United Australia Party” that it is likely to be confused or mistaken for the name “United Australia Party”. Now, your Honours will have seen from the Commonwealth’s written submissions at paragraph 20 that they call in aid the second operation of section 135(3) in aid of a submission to the effect that section 135(3) has as one of its purposes the prevention of voter confusion. Can I make a number of observations about that.

The first is this. If that were truly a purpose of the provision, it is difficult to see why it should be limited to a single electoral cycle. If, for example, the Australian Democrats, who your Honours may have seen appeared on the ballot paper for the 2022 Victorian Senate election, had voluntarily deregistered in 2008 once they no longer had any members in Federal Parliament, section 135(3) would have the effect that another political party could not have sought registration under the name “Australian Democrats” in July of 2020, but they could have sought registration under that name in September 2020, there having been a general election of the House of Representatives occur in August of that year.

Now, it is difficult to see how it can be said to be consistent with the provisions having the purpose of preventing voter confusion that a party could register under the name “Australian Democrats” in July of 2020 – it could not register under the name “Australian Democrats” in July 2010 but could in September 2010.

BEECH‑JONES J:   But is not the time for voter confusion when the voters go to vote?  So, you would not look at that timeframe, you would look at the next election, which is a couple of years later.

MR VILLA:   Well, the proposition is still good, in our submission, because a party that has the notoriety of the Australian Democrats, for example, is a party the use of whose name three years later is unlikely to be any less confusing than had it been only one month after the previous election.

GORDON J:   That does not answer, does it, the second identified purpose of transparency?

MR VILLA:   It does not.  I accept that, your Honour, and I will come to that.

BEECH‑JONES J:   And your answer might be showing our age, Mr Villa, because to new voters, the name “Australian Democrats” may mean nothing.

MR VILLA:   Certainly at least one of my juniors had that objection yesterday, your Honour.  The second observation we make about that supposed purpose of the provision is that that object is substantially achieved by the independent operation of section 129 that I took your Honours to earlier, at least insofar as the deregistered party is a parliamentary party or was a parliamentary party and therefore has the benefit of those provisions that relate to the names of a recognised political party.

Thirdly, your Honours, as we have set out in writing – and I do not need to take your Honours to the underlying material, we have identified it in the submissions – the drafting history of this provision, in our submission, does not support that proposition. The drafting history clearly indicates that section 135(3) had the singular, narrow purpose of preventing the circumvention of section 136, to which I will come in a moment. Now, can I immediately say ‑ ‑ ‑

GORDON J:   Is there a temporal problem with that submission?

MR VILLA:   I was going to immediately say I think I am dealing with your Honour’s observation.  We accept entirely the proposition advanced by the Commonwealth at paragraph 18 in their written submissions that the purpose of the provision is to be determined having regard to the Act as a whole, and is to be determined having regard to amendments to the Act since the time of its original enactment.  However, we do say that it is still a legitimate process of reasoning to determine the purpose of the provision as originally enacted and then to consider what amendments have subsequently been made to the Act to determine whether or not those amendments effect some modification to that original purpose.

And for reasons that we will come to at the end of the submissions, your Honours, in our submission, will be unconvinced by the submissions made by the Commonwealth and by the intervener that subsequent amendments to the Act, including the current financial disclosure regime, have the effect that section 135(3) has any purpose related to the maintenance of the integrity of that financial disclosure scheme.

The mere fact that the provisions adopt, as the factum upon which they operate, the status of registration of a political party does not, in our submission, have the effect that all of the provisions that relate to that registration scheme are directed towards the maintenance of the integrity of the transparency regime.

Your Honours, we have identified the purpose of section 135(3) as the prevention of the circumvention of section 136, and I should take your Honours to ‑ ‑ ‑

GAGELER CJ: Is that really an answer to the proposition that a purpose of section 135(3) is to prevent voter confusion when you have an almost identical provision in section 136, which also appears to be directed to preventing voter confusion?

MR VILLA:   I accept that the presence of that subsection in 136 reduces the force of what I have said but it is, in our submission – having regard to what is in section 129, at least to the extent it applies to recognised political parties – it is surplusage because it does the same work that section 129 does.

STEWARD J:   You say the same work, but could it be argued that it is complementing section 129?

MR VILLA:   The only complement that it makes to it, in our submission, is its operation with respect to parties other than recognised political parties.  At least the parliamentary debates indicate that the non‑registration for an election cycle was inserted, in effect, as a penalty.  They say the parliamentary debates record that the only penalty associated with deregistration under 136 is the inability to register for a single election cycle.  “Penalty” is probably not the right word but that is the word that is used in the parliamentary debates.

GLEESON J:   Mr Villa, do we have any facts about why the party voluntarily deregistered?

MR VILLA:   No, there is nothing in the special case about that, your Honour.  Your Honours may have observed – but if your Honours have not, I will make the proposition – that no reason needs to be given under section 135 for voluntary deregistration.  A party is entitled to seek it and, if they seek it in the prescribed way, the Electoral Commission is required to give effect to that request.  We do say that whatever the reason may have been is irrelevant to the constitutional questions that the case gives rise to.

BEECH-JONES J:   Mr Villa, with 136, and you may be coming to this, you say the purpose of 135(3) is not to circumvent that part of 136 that prevents the parliamentary party from being deregistered.  Is that what you say?  Or could I put it this way, is not the purpose of preventing a parliamentary party being deregistered under 136 to ensure that the parliamentary party – no matter what its, as it were, faults were – continues to comply with whatever scheme of regulation there is in the Act, from time to time?

MR VILLA:   It is more this difficulty, your Honour.  It is to prevent circumvention of the disentitlement to re‑register for the electoral cycle.  So, the way it was put in the parliamentary debates is if a party were imminently coming up to the four‑year period which would require – so there is no notice requirement here, there is nothing to satisfy other than the fact that four years have expired without endorsement of a candidate.  The concern was that on year three, day 300, the party could voluntarily deregister and then immediately re‑register, thereby circumventing the purpose of 136, one of which was to prevent parties from parking on names that were thought to be electorally valuable in circumstances where they were not, in fact, fielding candidates.

BEECH‑JONES J:   Why was there an exclusion for parliamentary parties?

MR VILLA:   Again, the debates – so, subsection 136(3) was, again, an amendment to the amending Bill made during the course of the debate.  The reason for that – we have given your Honours the reference to the parliamentary debates in the written submissions, but the reason given for that was related to the position of Senator Harradine.  It, in fact, relates to the position of senators generally, in the sense that if there were – and take Senator Babet, for example – only one member of parliamentary party in the Senate, they are not necessarily going to be endorsing candidates more frequently than the Senate elections.

Now, that is – in the modern, 40‑years‑later era of political parties, that is an unlikely scenario, but that was the scenario that Senator Harradine was concerned with.  He, at that time, of course, sitting as an independent, and subsequently, but the concern was that if he wanted to take advantage of other parts of the scheme, including funding, and wanted to form a political party, these provisions would have the effect that it would become deregistered during the course of his six‑year Senate cycle ‑ ‑ ‑

BEECH‑JONES J:   Because it might be another six years before he nominated someone.

MR VILLA:   Yes, yes.

BEECH‑JONES J:   With the consequence that, if he had a party, they would have to continue to comply with the Act.

MR VILLA:   Yes.  Your Honours, the reference to that transcript is page 2315 of the joint book of authorities in volume 7.  That is where the relevant Hansard of the parliamentary debates appears.  Your Honours, can I then turn very briefly to the benefits that are conferred upon registered political parties in ‑ ‑ ‑

GAGELER CJ:   Before you do that, what is the purpose of section 136(2)?

MR VILLA:   Does your Honour mean the rendering ineligible for registration for the electoral cycle, or the ‑ ‑ ‑

GAGELER CJ:   The confusion.

MR VILLA:   Well, again, your Honour, we say that ‑ ‑ ‑

GAGELER CJ:   Actually, both parts.

MR VILLA:   Your Honour, the submission that we made in respect of the name confusion is effectively the same submission that we made in relation to the equivalent provision in section 135, that is, it is surplusage, to the extent that it applies in respect of a recognised political party, and its only purpose could be otherwise – and, your Honour, I will have this checked, but otherwise the parliamentary debates do not seem to indicate – and the report which led to the amendments in 1983 do not really ventilate what the purpose of that is, having regard to the presence of section 129.  Your Honour, I may need to go back to look at the form of section 129 when the registration scheme was first introduced to provide your Honour with a better answer, but if I can come back to that, your Honour.

GAGELER CJ:   And the other part, then, just the inability to be registered until after the election, what is the purpose of that?

MR VILLA:   Again, the best that we can do, I think, your Honour, is to suggest that that was the stick requiring people who wanted to be on the register to continue to field candidates.  So, again, it was in aid of the purpose of the provision generally, which was to prevent people parking on electorally favourable names but not using them.

So, your Honours, can I turn briefly to the benefits conferred upon registered political parties in the electoral process by the fact of registration.  As we have set out in our written submissions, they include certain administrative benefits under section 166.  Nominations can be signed by the registered officer of a registered political party, rather than having to be signed by 100 electors.  Under section 167, there is a process for bulk nomination of lodgements by the party.  More significantly for the purposes of this case, however, are the benefits that accrue to a registered political party by reason of the form of the ballot paper.

If your Honours could go to section 168, your Honours will see there that, in an election for the Senate, that two or more candidates can request that they be grouped together on a Senate ballot paper.  Your Honours, that, of course, is an application that can be made by candidates who are not endorsed by a registered political party, but the consequence of being grouped and being grouped as members of a registered political party is that a request can be made for grouping under section 168 and for the name to be endorsed on the ballot paper under section 169.  Then the effect of that on the ballot paper is provided for by section 214(2):

Where:

(a)2 or more persons have been endorsed as candidates in a Senate election by a registered political party;

and the request is made:

in respect of the candidates under section 168 –

so, that is the grouping request.  Then:

(c)the registered name of the party by which each candidate was endorsed shall be printed adjacent to the name of that candidate on the ballot papers;

(d)where all the candidates were endorsed by the same party and a square is printed above the line on the ballot papers . . . the registered name of that party shall be printed on the ballot papers adjacent to that square –

Your Honours will see there is a similar provision in relation to the printing of party logos which appears at section 214A.  Can I demonstrate, by reference to the special case book, what the effect of those provisions looks like.  If your Honours can turn to page 42 of the special case book, your Honours will see the form of ballot paper that resulted in the election of Senator Babet in the 2022 Senate election.  So, column L ‑ ‑ ‑

GAGELER CJ:   We have seen these sorts of documents before.

MR VILLA:   Yes, all right.  The distinction I really wanted to draw was between column B – which is a group of candidates not endorsed by a registered political party, so, that is where a grouping occurs but there is no name or logo and, similarly, with R, T and Y, as compared to the ungrouped candidates who appear at the end.  So, your Honours – I would not suggest your Honours should reproduce that in the judgment like was done in Ruddick, in a way that is illegible.  But your Honours know the ‑ ‑ ‑

GAGELER CJ:   I tried.

MR VILLA:   ‑ ‑ ‑ visual benefit, in terms of the form of the ballot paper, of having the names.  Your Honours, in our submission, those provisions that I have just taken your Honours to have an obvious practical advantage to registered political parties when it comes to the casting of votes on the ballot paper.

They also confer an obvious practical advantage to electors who seek to endorse particular policy positions by casting votes in favour of a political party whose policy positions align with their own who they can identify by virtue of the fact that the political party name is on the ballot paper.  They also enable a voter to positively reject a particular policy position by casting votes against candidates aligned with political parties that they can identify as being parties that support policy positions that are anathema to that particular elector.

So, we are talking about a scheme that is important not just for the promotion of the United Australian Party or its candidates, it is a scheme important more generally for the exercise of electoral choice by the electors, whether that be by voting in favour of particular parties or by voting against particular parties and their associated policy positions by the way that one distributes their preferences. Given that these are advantages that are not personal to the particular candidates and are not personal to the particular political party, they are, importantly, advantages to the institution of representative governments by promoting the availability of information that is highly relevant to the exercise of the informed electoral choice guaranteed by sections 7 and 24 of the Constitution.

Your Honours, the importance of political party affiliation and that affiliation appearing on the ballot paper has been recognised in many of the judgments in this Court that have dealt with that registration scheme.  We have given your Honours the references in the written submissions.  I will come to Mulholland and Ruddick in detail in a moment, we have given your Honours the references in the written submissions, but we refer in particular to the judgments of Chief Justice Gleeson in Mulholland, as well as the judgments of Justice McHugh and Justice Kirby in that case, and the judgments of Chief Justice Kiefel and Justice Keane and your Honor Justice Gageler in Ruddick, where ‑ ‑ ‑

STEWARD J:   The dissenting judgments.

MR VILLA:   Can I come to that, your Honour.  Not all of them are dissents in the result, and not all of them are dissents even in the reasoning.  But the fact of dissent in the result does not affect the force of what is said as to the practical impact and benefit of having party affiliation endorsed on the ballot paper, and, therefore, the practical impact of not having political party endorsement noted on the ballot paper.

I hope I can demonstrate, when I take your Honours to Mulholland and Ruddick, the parting of ways between the majority and the minority in those cases does not in any way depend upon or undermine the force of what has been said in those judgments about the practical benefits of endorsement on the ballot paper.

Your Honours, can I turn then to address each of the three ways in which we seek to impugn section 135(3). The first is a challenge based upon the burden it imposes upon the informed electoral choice inherent in the system of representative government guaranteed by sections 7 and 24 of the Constitution.  Can I begin by reminding your Honours of what this Court said in Lange v Australia Broadcasting Corporation 189 CLR 520, it is behind tab 11 in the joint book of authorities. Your Honours, the relevant discussion commences at page 557 of the report, at the top of which their Honours made the observation that those sections of the Constitution:

read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively.  This requirement embraces all that is necessary to effectuate the free election of representatives at periodic elections.

Even at that stage there is, in our submission, an embracing of a requirement that elections do something more than merely – that elections are more than merely the mechanical exercise of ticking a box on a ballot paper.

Your Honours, over at page 559 under the heading “Freedom of communication”, there is then a discussion about communication on matters of government and politics being an indispensable incident of the system of representative government created by the Constitution.  Then over at page 560 the Court makes further observations about what the guarantee of representative government means.  Importantly, about point 3 down the page, their Honours say that:

because the choice given by ss 7 and 24 must be a true choice with “an opportunity to gain an appreciation of the available alternatives” –

Referencing Justice Dawson in ACTV v The Commonwealth:

legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.

They then continue to say:

that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors.

is something that of necessity is protected by sections 7 and 24. So there is, in our submission, a guarantee not only that they can make a free electoral choice, but that the electors can make an informed electoral choice as to who should be their representatives. Can I just give your Honours – just foreshadow something I will come to in a moment. A similar point is, of course, made by Justice McHugh in his judgment in Mulholland at page 73. So, your Honours, the starting point of our submission is that this recognition of the importance of informed electoral choice as an essential component of representative government imposes a limit on Parliament’s ability to burden the availability of information that is relevant to the exercise of that informed electoral choice by electors.

GLEESON J:   Is the casting of the vote itself treated as a communication concerning political or governmental matters, and does that matter in relation to this analysis?

MR VILLA:   It does not matter in relation to this analysis.  There are ways in which the casting of a vote could have a broader aspect of political communication.  One is, of course, as one regularly sees in the commentary about by‑elections, the result of a by‑election can indicate a protest against current government policies.  So, the totality of the casting of votes on a ballot paper might have that broader communicative element.

The more direct communicative element is, of course, as we accept, the communication to the Electoral Commission as to what choice you had made.  But what we are talking about is antecedent communication, which assists in the polling booth; the process of an elector determining what communication they should be making through the ballot paper to the Electoral Commission as an indication of the choice that they have made.

Now, can I then take your Honours to what is said about this aspect of our case in Mulholland v Australian Electoral Commission (2004) 220 CLR 181, which appears at tab 15 in the joint book of authorities. Your Honours, in our submission, there is no clear majority reasoning in Mulholland that governs question 1 in the stated case. Can I begin with the judgment of the Chief Justice. His Honour at paragraph 17 notes the submission made by the appellant in that case that:

the 500 rule and the no overlap rule –

I take your Honours understand the shorthand that I am using in that regard:

contravene the constitutional requirement of direct choice –

in two ways.  The first way that it is said to:

contravene the constitutional requirement of direct choice –

is that the provisions:

impede or impair the making of an informed choice by electors –

His Honour deals with that aspect of the appellant’s submission in Mulholland in the next paragraph.  His Honour notes the acceptance by the Electoral Commission and the Attorney for the Commonwealth intervening:

that the choice required by the Constitution is a true choice with “an opportunity to gain an appreciate of the available alternatives”.

What his Honour then does, however, is seem to deal with the submission by focusing on what we would describe as a mechanical aspect of electoral choice.  His Honour gives an example of a constitutionally impermissible choice, a particular form of ballot paper:

that had printed on it only one name, being that of the government candidate, requiring –

anyone else who someone wanted to elect to write that name on the ballot paper and select them that way.  Now, that is a mechanical aspect of the exercise of choice which his Honours suggests is impermissible.  His Honour says that the ballot paper in issue in Mulholland – and similar observation could be made here – is that the ballot paper in this case does give a true choice because:

The available alternatives between candidates are set out on the ballot paper.

Again, in our submission, what his Honour is dealing with is a purely mechanical aspect of the exercise of choice by reference to the form of the ballot paper.  His Honour is not in fact dealing with the submission that is being made by the appellant, and in respect of which there is a concession by the Electoral Commissioner and Attorney intervening as to the informational aspect of the exercise of choice.  With the greatest of respect to his Honour, his Honour seems to have simply not dealt with that important part of the argument that was being made by the appellant in that case, because the focus is on the mechanical, not the informational aspect of the exercise of choice.

His Honour Justice McHugh deals with free choice over at paragraph 72 at page 211 of the report.  At paragraph 73 – and this is the paragraph that I had foreshadowed I would come to earlier – his Honour notes and emphasises the informational aspect of free choice as an “informed choice”, and that includes:

information about the candidates among whom voters are required to choose.

Your Honours, the “about”, in our submission, means much more than just the names of the candidates, which was the focus of Chief Justice Gleeson’s analysis.  It means information about what they stand for, what their policies may be, et cetera.

Then, at paragraph 74, Justice McHugh notes that an important part of that information, crucial to the exercise of an informed choice by the elector, is party endorsement.  Indeed, so important for Justice McHugh is the notion of party endorsement that at paragraph 78 his Honour ponders whether the role of organised political party is such that:

the Australian system of representative government –

has:

developed to such an extent that that system requires that a candidate have the right to have his or her party endorsement noted on the ballot‑paper.

Now, we do not urge that proposition on your Honours by our stated case, but what we do say is that it demonstrates the centrality of party affiliation as an important factor in the decision‑making process by the elector in determining how to exercise their vote in the ballot box.

STEWARD J:   Where do you draw the line if, as you submit, an informed choice requires information to be provided?  And you say including party affiliation.  The scheme of the Electoral Act does not give a right for that to take place.

MR VILLA:   No.

STEWARD J:   So, you accept that that is valid.  Where do you draw the line?  You accept the Mulholland correctly decided, I think, on the 1,500 requirement as it now is.  That is another example where information can be denied.  So, what is the line where you can deny information validly and when you cannot?

MR VILLA:   Your Honour, I hope I can answer that when I come to the justification aspect of our argument.

STEWARD J:   All right.  I am happy to wait.

GORDON J:   Do you accept paragraph 80 of Justice McHugh?  You must, I think.  That is, it is dynamic in Parliament, as it has an ability to have some freedom about the way in which it sets up the scheme.

MR VILLA:   I do accept that, your Honour.  As is the case with all of the provisions dealing with implications drawn from the fact of representative government, there are very few absolute propositions.  There is, of course, a capacity for the Parliament to design the system in a particular way to pursue legitimate purposes.  As Justice Gordon said, I think, in ACTV, the difficulty is where does one draw the line.

One sees that in the submissions from the intervener in response to the example that emerges from the Full Court’s decision in Mulholland about printing a ballot paper where the government candidate was in a particular font size and all the other candidates were in a minuscule font size.  Everybody in these cases accepts that there are some limits to what the Commonwealth can do in designing the electoral system.  The difficulty is identifying where the lines can be drawn.

GLEESON J:   But the line identified by Justice McHugh is the irreducible minimum.

MR VILLA:   Yes, yes.  That phrase appears in many of the cases.  Because of the very dynamic nature of the electoral system and the social conditions and the political process, it is constitutionally very difficult to draw bright lines, partly because the justification is going to change from time to time, but partly because, as has been recognised in a number of judgments, the content of what is the irreducible minimum requirement of representative government also changes, having regard to the maturing notions of what representative government from time to time requires.

So, your Honours Justices Gordon, Edelman and Gleeson in your Honours’ judgment in Ruddick recognised that there were things that could previously have been done by a call of Parliament in terms of the franchise that would not be an acceptable implementation of a system of representative government in 2025.

BEECH‑JONES J:   We are not at that area about franchise, we are about – we are really focused on choice.  A choice implies some degree of – all these phrases, “informed”, “full”, “free” choice involved that someone is not unreasonably denied their party – like in this context, unreasonably denied their party logo on the ballot paper.  I mean, that is the sort of treatment, that is the area we are in.  It all focuses on what is required by an informed choice, is it not?

MR VILLA:   I accept that, your Honour, but one needs to recall, in our submission, that a system of representative government includes not just electors but the elected.  And so, in the same way that there are limits to what the Parliament can do in limiting the franchise, there are also limits, in our submission, about what the Parliament can do in limiting candidacy for election as a representative.

Once there is a limit on what the Commonwealth can do directly, our submission will ultimately be they cannot avoid those limits by doing it indirectly, and the effect of the regime that is established under these provisions, if the logic of what is said against us about what Mulholland says – we do not accept it – but if that logic is followed through to its logical conclusion then, by the imposition of qualifying requirements for registration, the Commonwealth would be able to achieve indirectly what we say it could not achieve directly.

GAGELER CJ:   Is your second point about discrimination really part of your first point about informed choice?  You are not saying that there must be a system by which parties’ names and parties’ logos appear on the ballot paper, but you are saying if there is such a system, you are being unjustifiably shut out of the communicative benefit of that.

MR VILLA:   Yes.  So, your Honour, as I think I indicated earlier, we do not advance – and your Honours are not being called upon to answer the question of whether Justice McHugh was correct in paragraph 78 in Mulholland when he suggested that perhaps things had developed to the stage that candidates did have a right to party endorsement on the ballot paper – but what we do say is that where the Commonwealth erects a system where that can occur, that cannot occur in a differential way.

I know your Honour the Chief Justice in Ruddick baulked at the use of “discrimination” and “discriminatory” and “privilege”.  They are really just shorthand for differential treatment that either disadvantages one or advantages another.

GAGELER CJ:   Or keeps some information from voters and gets other information to voters.

MR VILLA:   Yes. 

GAGELER CJ:   That being the point, you would have to accept, I think, that whichever way you put your case – whichever the two or three ways you put your case – it comes down to a question of justification, does it not?  Justification for the differential treatment that is imposed by the provision that you impute?

MR VILLA:   Yes.  Quite, your Honour, and as I hope I indicated previously, there is no absolute proposition being advanced here.  We recognise that there are some things that the Parliament can do but they can only do them, if they burden that informed electoral choice, if they are – to use the language in Lange – “reasonably appropriate and adapted” to pursue a legitimate end that is, itself, consistent with the constitutional guarantee of representative government.

GORDON J:   There is one aspect of that I would like you to address, and that is that, as I understand the Commonwealth’s case against you, one does not even get to that point, because there is no burden:  the effect that your client is in is because they, themselves, voluntarily deregistered.  That is not a result of the scheme operating, it is because of the voluntary steps your client took.

MR VILLA:   Yes.

GORDON J:   What is the answer to that analysis?  You may want to deal with it later.

MR VILLA:   There are aspects of the answer to that that I will come to in a moment ‑ ‑ ‑ 

GORDON J:   Thank you.

MR VILLA:   ‑ ‑ ‑ when I talk about what Justice McHugh says in Levy, but can I deal with the voluntariness aspect.  That was a proposition that was put against the applicants in the case that dealt with the reduction of time to get on to enrol or transfer enrolment, which had been seven days and was reduced to virtually no time.  And the proposition that was put against the applicants in that case was, you had the opportunity to enrol, or you had the opportunity to transfer your enrolment, and you did not take up that opportunity.  The result of that case must be ‑ ‑ ‑

GORDON J:   But the argument there was, that was because the rules were changed.

MR VILLA:   Well, it is not quite the whole answer, your Honour, because the applicants did not become entitled to enrol in that seven‑day period, they had an opportunity to enrol prior to the issue of the writs, which – and the argument that was put against them was, you did not take up that opportunity to do that, and so you, therefore, cannot complain about the fact that the rules have changed, but not in a way that prevented them from still taking up the opportunity to enrol prior to the issue of writs.  So, the fact that one of the casual factors of the burden is voluntary conduct is, in our submission, not an answer in this case, in the same way that it was not an answer in the other cases.

In terms of other aspects, your Honour, I will come to what the Court said in Mulholland, but I just want to complete the analysis of the way that informed electoral choice was dealt with in Mulholland to demonstrate that there is no majority proposition inconsistent with the submissions that we are putting.  Justices Gummow and Hayne appear to deal with this issue, commencing at about paragraph 150 and, ultimately, our submission is that their Honours’ judgment does not directly address the question at all.

There is a lengthy historical analysis of features of electoral systems, both in the United States and in the Australian colonies as at the time of Federation.  There is also a lengthy discussion of the authorities which recognises that Parliament was given a significant leeway of choice in determining the irreducible minimum content of the system of representative government established by the Constitution.  That discussion, then culminates at page 163 ‑ ‑ ‑

BEECH-JONES J:   Do you mean paragraph?

MR VILLA:   Paragraph 163, thank you, your Honour, where their Honours say that there must be some allowable:

measure of legislative choice as to the minimum number of party members.

Before then observing that the Federal Court had not been favoured with sufficient material upon which:

to adjudicate as a “constitutional fact” whether a requirement of 500 members was excessive.

And that the Court was not in a position:

to “second guess” the legislative choice made twenty years –

earlier.  So, in our submission, their Honours have not addressed the anterior question of whether there is an impairment of informed electoral choice; they have determined the case on the basis that, as a matter of proof, the appellant has not demonstrated that the impugned provisions in that case exceeded the available leeway of choice afforded to the Parliament.

GORDON J:   They do adopt, at the end, that temporal question that you and I discussed.

MR VILLA:   I am sorry, your Honour?

GORDON J:   They do refer at the end to the temporal question about the way in which you construe the statute by reference to subsequent amendment.

MR VILLA:   Yes, your Honour.  And, again, we do not cavil with the proposition that is put against us in that regard.  Justice Kirby discusses the appellant’s argument based upon the “directly chosen by the people” requirement in a number of steps and in a number of different places.  The conclusion is most clearly expressed at paragraph 261, namely, that:

the “500 rule” and the “no overlap rule” amount to real and practical burdens on the freedom of the DLP and its members to participate in elections . . . and to offer candidates who freely align with it, by reference to such affiliation.

The reason for that is probably most neatly summarised – I will just give your Honours the reference – at paragraph 257.  This is the significance of above the line voting on the Senate ballot paper.  We observe that what his Honour Justice Kirby said at paragraph 257 aligns, in our submission, with the reasons articulated by your Honour Justice Gageler in Ruddick for the similar finding as to the existence of the burden on informed electoral choice.

Your Honours, we respectfully submit that it is somewhat difficult to discern how Justice Callinan addressed this issue.  The appellant’s submission is recorded at paragraph 323.  The observation is then made at 324 that those:

submissions echo the language of –

the Supreme Court of Canada’s decision in Figueroa.  Then, at 325, his Honour says that:

The reasoning and the decision in that case –

in Figueroa:

did not assist the appellant.

For reasons that are given at paragraph 325 which, in short form, are largely because of the different constitutional contexts in which the issues arose in that case.  At paragraph 326 there is then an emphatic statement by his Honour that he was:

not prepared to hold that ss 7 and 24 of the Australian Constitution go . . . so far.

As the provisions in Canada, but does not otherwise, in our submission, really engage with the argument that was put on the burden on informed electoral choice, and therefore does not really address the way that we put it.  His Honour then says, at paragraph 326:

as will appear, I am not prepared to hold that the challenged provisions do deny to electors . . . opportunities of meaningful participation in the election of members –

But there is nothing, as we read his Honour’s reasons, to explain that conclusion, and that what was said would appear, in fact, does not appear in the remainder of what his Honour says.  So, in our submission, Justice Callinan does not really say anything one way or the other about this aspect of the case that we put.

Finally, Justice Heydon addresses the argument at paragraph 343.  His Honour’s reasoning appears at paragraph 344.  Your Honours, in our submission, the reasoning given at paragraph 344 elides the question of whether informed electoral choice is impaired and the question of whether or not any such impairment is justified.  So, the upshot of that analysis, your Honours, is, in our submission, there is no majority reasoning in Mulholland that is contrary to the argument that we advance in respect of question 1.

BEECH-JONES J:   Just remind me, what do you say in Mulholland does not preclude you saying?

MR VILLA:   It does not preclude us from saying that a provision that disentitles us from registering as a registered political party does not constitute or cannot constitute an impairment of informed electoral choice.

EDELMAN J:   Are you going to address Justice McHugh’s judgment in Levy as a separate issue from that?

MR VILLA:   Yes.  That is whether you need a freestanding right.  I will be doing that, your Honour.  That more obviously arises in the freedom of communication context.

GORDON J:   Also, in that context, when you come to it, could you deal with Justice McHugh in Mulholland at paragraph 111 as well, please? It is raising the same issues about independent rights.

MR VILLA:   Yes, yes.  I will certainly be addressing that paragraph as well, your Honour.

GORDON J:   Thank you.

MR VILLA:   Your Honours, I was about to move on to Ruddick.  I think my analysis of Ruddick will be slightly shorter than what I did with Mulholland, but I am in your Honours’ hands as to whether you want to take the break now.

GAGELER CJ:   We will take the break now.  I take it that we are on track, are we?

MR VILLA:   Yes, yes, your Honour.

GAGELER CJ:   Very well.  We will take the morning adjournment.

AT 11.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.26 AM:

MR VILLA:   Your Honours, just to conclude what I was saying in respect of Mulholland at point 6 of the oral outline, the effect of that analysis, in our submission, is that there is no majority reasoning inconsistent with the proposition that the provisions in issue in that case by the burdened, or distorted, or impaired, informed the electoral choice.  We do not challenge the result in that case because, for the reasons identified in the paragraphs the ‑ ‑ ‑

GAGELER CJ:   Well, in your paragraph 6 where you say “this proposition”, it is the proposition in paragraph 5, is it?  That is this part of your argument which leaves us anticipating your argument about justification, eagerly.

MR VILLA:   Yes, it is an issue that is common to all three points, and so I will come to it.  I just want to make the observation that we have identified the paragraphs in Mulholland that we say provides the justification for the impairment of informed electoral choice in that case.  Your Honours, can I turn then to Ruddick v Commonwealth (2002) 275 CLR 333. This is tab 17 of the joint bundle. Your Honours Justices Gordon, Edelman and Gleeson, at paragraph 146 commence the discussion about the constraints upon legislative power derived from section 7 and 24 of the Constitution. 

Your Honours, at paragraph 148, and particularly the last half of that paragraph, over at page 389 of the report, discuss the issue that I adverted to earlier about how the content of that limitation might vary over time having regard to changing conditions, and your Honours there are talking about some of the franchise cases.  Then at paragraph 151, your Honours make the observation that:

This special case concerns a different dimension of the requirement –

of being directly chosen.  Your Honours observe that it is: 

a dimension to which the same general principles should apply.

Then your Honours record that:

The notion of “choice” is broader than “elected” because “choice” connotes a requirement of quality of information, just as the concept of “the people” is broader than merely “the electors”.

Now, the notion of “choice” being broader than “elected” is, in our submission, part of the distinction that was being drawn by Chief Justice Gleeson in Mulholland.  That is, his focus, in our submission, was upon the “elected” aspect – that is, the mechanical aspect, rather than the informational aspect.  Your Honours then go on to say that:

The constraint implied by the requirement of choice is that the people must have the ability to make an informed choice, which restricts Parliament’s ability to constrain the extent to which the people can “convey and receive opinions, arguments and information concerning matter intended or likely to affect voting”.

And we say party affiliation is obviously within that category.  Importantly, is the adoption of the phrase from ACTV about conveying and receiving, because, in this aspect of our case – as I have hopefully articulated previously – we are not just talking about a right of the United Australia Party or its candidates to communicate to electors, we are talking about the necessity for electors to obtain information that is relevant to their making of the choice.

STEWARD J:   Is “informed choice” really more accurately capacity to be informed?  Burdens on the capacity for someone to be informed.

MR VILLA:   Well, “capacity” is a difficult word, your Honour, because it has many different meanings.  We prefer “ability” as a more ‑ ‑ ‑

STEWARD J:   I am happy with “ability”.

MR VILLA:   ‑ ‑ ‑ neutral word, but it is ability within a context which – as Justice McHugh and Chief Justice Gleeson emphasised in Mulholland, and as your Honour the Chief Justice emphasises in Ruddick, it is an ability in the context of a political system in which party affiliation is central to the way in which candidates convey information, and is also critical in the way that electors receive information important to their electoral choice.

STEWARD J:   Going to back to what I asked you earlier, the logic of that argument would say that there should be a right to have your affiliation on the ballot paper, which you do not go as far as that.

MR VILLA:   No, we do not.

STEWARD J:   So, what in your argument, by reference to principle, tells us where we should draw the line and why are we over the line in your case?

MR VILLA:   Your Honour, again, we are dealing with question 1, here.  The first step is:  is there a burden or an impairment, or a distortion of informed electoral choice?

STEWARD J:   I am happy to wait.

MR VILLA:   And then the second issue is, can that be justified or can that be justified as a reasonably appropriate and adapted means of pursuing a legitimate end compatible with representative government?

BEECH-JONES J:   I thought what you said to the Chief Justice was that the concept of “informed choice” is not a question of having a right of everyone to have their party logo, it is that if there is a system of party logos, you will not be unreasonably excluded from that and that is what is picked up by “informed choice”.  Is that right?

MR VILLA:   That was the proposition that I put in answer to a question from the Chief Justice about discrimination, and so we certainly do put that.  But there is a difficulty with casting it in terms of rights because we are not talking about rights, we are talking about limits on legislative power, and the limit we contend for is that the Parliament cannot create an electoral system – or more particularly, a system of registration of political parties – in a way that has as its practical effect, a burden upon, or an impairment of, or a distortion of informed electoral choice.

If it does so, it can only permissibly do so for – to use the language of Chief Justice Mason, in ACTV – a “substantial” purpose which, subsequent on authorities, have identified as being a – described in the language of being reasonably “appropriate and adapted”, et cetera.  Whether that requires structured proportionality and, if so, how that will be done is not, we anticipate, going to determine the outcome in this case because we say that whichever formulation is used and whether structural proportionality is a tool towards the end of determining whether it is reasonably appropriate or adapted or is itself a standalone requirement is not going to change the outcome in this case.

GAGELER CJ:   Can I just ask another question.  Is the question of justification – whatever formula is used – to structure the analysis different for any of the three, or two, ways you say there is a burden on a constitutionally protected area?

MR VILLA:   I think not, your Honour, but I will subconsciously reflect on that in the interim until I come to it.  Your Honours, I was dealing with Ruddick. The plurality judgment then at paragraph 154 and following, there is a more general discussion about the freedom of political communication restraint and the position in the United States. Then at paragraph 161 your Honours then address directly the question of whether or not Mr Ruddick had established a burden on electoral choice.

Now, it is important to remember in that case that there was an admission on the pleadings that some voters intending to vote for the Liberal Party instead had unintentionally voted for the Liberal Democratic Party.  Your Honours will see that referred to at paragraph 140 in the plurality judgment, and there are other references in the other judgments to admissions that had been publicly made by Senator Leyonhjelm that a substantial increase in votes for the Liberal Democratic Party from previous elections was largely attributable to voter confusion. 

In that context, it is entirely understandable that one might regard the argument put on behalf of Mr Ruddick – namely, that the quality of electoral choice was impaired by the inability to use the name “Liberal Democratic Party” – with as degree of scepticism.  Your Honours in the plurality, in our submission, gave that as the reason, at paragraph 162, as to why there was no burden upon informed electoral choice.  It was not a proposition that there could not be, but a proposition that, on the facts of that case, in fact informed electoral choice was enhanced by the provisions that were impugned and not impaired.

Your Honour Justice Steward at paragraph 174 does not separately address the issue, but it would seem that your Honour is endorsing the analysis of the plurality.  So, in our submission, as a matter of authority Ruddick does not stand against the proposition that we put in question 1.

To put it another way, the analysis in the plurality judgment in Ruddick endorsed by your Honour Justice Steward was driven by a comparison between a ballot paper between the names of “Liberal Democratic Party” and “Liberal Party” as opposed to a ballot paper with the name of the Liberal Party alone.  In the present case, in our submission, the analysis must be driven by a comparison between a ballot paper that includes the name “United Australia Party” and a ballot paper that does not.

Can I turn briefly to discrimination.  I think most of what I wanted to say in respect of discrimination I have probably already said in response to the questions from your Honour Justice Gageler.  What we do say is that where the Commonwealth erects a system where it, through the Electoral Commission, is a participant in the electoral process and a participant in the process of communication of party affiliation, it can only permissibly do so either in a way that does not differentiate, or, if there is a differentiation, it is a differentiation that is justified by reference to it being reasonably appropriate and adapted to serve an end which is, itself, compatible with representative government.

The justification, for example, for the 500 rule in Mulholland – again, Mulholland is consistent with that analysis because the differentiation that occurred in that case as a result of the inability to register unless you had 500 persons did not contravene the no overlap rule was justified, for the reasons that we have identified.  What it cannot do, in particular, is privilege – that is, treat differentially to the advantage of some but not others – without that sort of compelling justification.

Can I then turn to freedom of communication.  Of course, part of this analysis builds upon what we have previously said about the importance of the ballot paper in communicating party affiliation.  I do not need to dwell on that any further.  The same factual and practical matters we identify are in play in the freedom of communication as they are in the informed electoral choice basis.

Now, can I address the elephant in the room, that is, whether the authorities support a proposition that there is no burden upon the freedom of communication in this case, because the impugned provision is part of the same Act that confers the benefit.

EDELMAN J: If that proposition were right, it would apply to the arguments about discrimination and the direct implication from sections 7 and 24 as well, would it not?

MR VILLA:   No, we do not accept that, your Honour.

EDELMAN J:   Why not?

MR VILLA: Because the – can I put it this way, the authorities that are relied upon for that proposition are in the communication context. The sections 7 and 24, or the informed electoral choice, is not dealing with communication in the same way. It is not focused on communication; it is focused on the ability to obtain information. So, we are looking at more structural impairments than one is looking at in terms of the communication cases. Can I try and assist your Honour a bit better with that as I move through the authorities for that proposition.

Can I take your Honours firstly to Levy v The State of Victoria 189 CLR 579, which is at tab 12 in the authorities. The purple passages – can I begin with page 625 of the report. Your Honours will see, about halfway down the page, Justice McHugh is explaining how it is that the impugned regulations, which in that case prohibited the plaintiff from entering the permitted duck hunting area, effectively burdened their freedom to communicate in a manner that they believed would have the most impact upon public sentiment.

One thing that is put against us is that even though we cannot have a name on the ballot paper, we can communicate party affiliation in other ways.  We say that it is not an adequate response, and it is not an adequate response partly for the reason that Justice McHugh gives at page 625.  Now, his Honour then discusses a qualification to that proposition, which turned on whether or not the plaintiff had a right to enter the area, and his Honour says, in language that is picked up in this Court in Mulholland, that:

unless the common law or Victorian statute law gave them a right to enter that area, it was the lack of that right, and not the Regulations, that destroyed their opportunity to make their political protest.

Importantly, and as was noted in a passage in Brown, which I will come to, his Honour notes that the matter was not take any further because:

The argument for both parties assumed . . . that, in the absence of the Regulations, the plaintiff and others were entitled to enter the . . . area –

Your Honours, the issue that is being addressed by Justice McHugh in that passage is starkly illustrated by this Court’s decision in Brown v Tasmania 261 CLR 328, which is tab 9 of the joint bundle.

A considerable part of each of the judgments in that case was directed towards an analysis of what conduct was already prohibited under the Forest Management Act and the extent to which the Protesters Act prohibited conduct over and above the existing and unchallenged provisions of the Forest Management Act.  The judgments expressed the issue in a number of different ways, but the key concept in the analysis of each member of the Court in that case is, in our submission, neatly encapsulated by what your Honour Justice Gageler said at paragraph 181, that is:

The effect of a law on the making or content of political communications is in turn gauged by nothing more complicated than comparing:  the practical ability of a person or persons to engage in political communication with the law –

that is, the impugned law:

and the practical ability of that same person of those same persons to engage in political communication without the law.

Your Honour justified that approach by reference to what Justice McHugh had said in Levy, and at paragraph 186 your Honour observed that the point of significance being made by Justice McHugh was that:

an impugned law cannot have the effect of constraining the ability of persons to engage in a form of political communication if those persons would –

already:

be prohibited by some other valid law from engaging in that form of political communication in any event.

Importantly, and in an observation that we respectfully suggest is incontrovertible, your Honour observed that any:

suggestion that political communications protected by the implied freedom are limited to those in which persons have some pre‑existing legally enforceable right to engage.

Does:

not accurately reflect the nature of the implied freedom –

We would add that, read in context, it really does not accurately reflect what his Honour Justice McHugh was doing in Levy.  Now, can I then to the way that Levy is dealt with in Mulholland.  Can I begin with the judgment of Justice McHugh.  At paragraph 107 and by reference to what his Honour had said in Levy, his Honour introduces the relevant discussion by observing that:

Proof of a burden on the implied constitutional freedom requires proof that the challenged law burdens a freedom that exists independently of that law.

Then, at 110, his Honour then says that Mr Mulholland did not:

have any right . . . to have the party’s name printed above the line or on the ballot‑paper.

Other than those conferred by the Act, the provisions of which were challenged.  Now, there is, in our submission, in those passages, an unfortunate elision between law and Act.

BEECH-JONES J:   What was the second passage you read from, Mr Villa?

MR VILLA:   Paragraph 110.

BEECH-JONES J:   Paragraph 110, thank you.

MR VILLA:   Your Honours, that, in our submission, is demonstrated by considering, at paragraph 111, his Honour’s treatment of the decision of this Court in ACTV.  He says that ACTV “does not assist” Mr Mulholland’s case because in that case, the challenged law, being the Political Broadcasts and Political Disclosures Act 1991:

operated to burden long-existing rights that existed independently of that Act.

Now, the difficulty with that analysis, in our submission, is that the Political Broadcasts and Political Disclosures Act 1991 was not a freestanding regime; it was an Act that amended the Broadcasting Act 1942 by introducing as new Part IIID.  The challenged law in that case burdened a right that was, in fact, conferred by other provisions in the very same Act.

The better explanation, in our submission, for the outcome in ACTV, is that the challenged provisions, being Part IIID, that had been inserted by the 1991 Act, burdened the freedom that had been conferred by other unchallenged provisions which, although part of the same Act, were clearly severable.  What we say the true explanation of ACTV is that because the rights were conferred by a law which was not the impugned law, then there was a relevant burden of a freedom, but is not correct to analysis it, in our submission, on the basis that it was right conferred by a different piece of legislation.

GAGELER CJ:   It is not even really helpful to talk in terms of rights being conferred – it was a means of communication that was available pursuant to a licencing regime.

MR VILLA:   Yes.

GAGELER CJ:   A practical means of communication available, and an important means of communication.

MR VILLA:   Yes.  I think Justices Gummow and Hayne in another judgment tried to explain ACTV by reference to persons having the freedom to use the radio spectrum, which was then abolished by the Broadcasting Act but reintroduced by reference to the licencing regime.  That is not, with respect, an analysis that seems to have been undertaken by any of their Honours in ACTV.

I think the proposition your Honour the Chief Justice put to me is consistent with what your Honour said in Brown v Tasmania at paragraph 187, where your Honour observed that in Mulholland the minority had compared the communication which would occur without the 500 rule and the absence of communication that would occur with those restrictions in place, whereas the majority in Mulholland had:

compared the communication which would occur . . . with and without the entirety of the statutory scheme for the registration of political parties of which the 500 rule and the no overlap rule were treated as forming inseverable parts.

Your Honours, what we say, differently to Mulholland but consistently with the modern approach taken to identifying whether there is a relevant burden on freedom of communication as articulated or as emerges from the reasoning in Brown, LibertyWorks and Farm Transparency is that the relevant question in this case is what political communication would occur in the absence of section 135(3) that will not occur by reason of the presence of section 135(3). The answer to that question, in our submission, is readily answered in respect of a parliamentary party which is otherwise entitled to the benefits of party registration pursuant to provisions of the Electoral Act from which the impugned provision is severable.

Can I then move briefly to the justification analysis. Your Honours, as we have said in writing, and as I have said this morning, we accept that the question of the purpose of section 135(3) is to be determined by reference to the Act in its current form, having regard to amendments that were made since the introduction of that section. But we say that none of the subsequent amendments to the Act, including the amendments relating to financial disclosure, have the effect of adding to or altering the original purpose of that section, which was, in effect, an anti‑avoidance provision supporting section 136.

The financial disclosure scheme, from time to time, and currently, simply adopts the status of a registered political party as the entity which it regulates in a particular way.  It did not have to do that, and it did not originally do that, and from time to time it has changed its mind about whether it is going to regulate registered political parties the same as or differently to other entities, but the fact that it adopts the status of registration of an entity to impose certain requirements on it does not say anything about the purpose of 135(3).

BEECH‑JONES J:   At least, can we not say that 136(3), in providing that parliamentary parties “shall not be deregistered under” 136, encompasses not only whatever benefit was sought at the time but also that that parliamentary party – which would include a parliamentarian – would comply with the registration and financial disclosure provisions of the Act as existed from time to time?

MR VILLA:   Well, as it existed at the time of enactment, the regime did not operate separately with respect to registered political parties, but in its current form, I do not cavil with the proposition your Honours put.

BEECH‑JONES J:   Does that not inform 135?

MR VILLA:   There are a number of different issues that we need to address in respect of this.  One is the purpose, and one is whether, assuming it has the purpose that the Commonwealth and the intervener says it does, whether it exceeds the permissible limits in the way it seeks to promote the transparency of the financial disclosure regime.  Can I just go back, though, to addressing the question of whether 135(3), as a matter of construction of the Act as in its current form, could have the purpose of enhancing the public interest in financial disclosure of donations or expenditure by political parties.

GLEESON J:   Mr Villa, I am sorry, before you get to that, I just do have one more question about your with the law and without the law test.

MR VILLA:   Yes.

GLEESON J:   In this case, your clients – or the party – took the benefit of the law that you are now asking for the comparison to done against.

MR VILLA:   Yes, and we would like to obtain that benefit again, hence the proceedings.  But the analysis is not a temporal one.  It is not:  what benefit did you have at one stage which you – on the Commonwealth’s argument – voluntarily gave up and now want to rekindle?  The question is:  what is the practical effect of the provision?  One determines that by looking at what the United Australia Party would be entitled to do if 135(3) is not there and what it is not entitled to do if 135(3) is there.  The answer to that question in this case is:  it is not entitled to the benefit of having party affiliation printed on the ballot paper.

GLEESON J:   But here, because the law was in force, you did deregister, so the counterfactual is involving the proposition that if the law was not enforced, you would have been required to remain registered.

MR VILLA:   There is no requirement to – we are not challenging the whole of the voluntary deregistration provision.  Absent 135(3), we would still be entitled to deregister.  There is no requirement that we remain registered.

EDELMAN J:   You are saying that 135(3) is severable from the rest of 135.

MR VILLA:   Yes, yes.  Or it should be read down so as to not apply to parliamentary parties because, to the extent that its purpose is limited to an anti‑avoidance of 136, it cannot have that purpose, because 136 itself does not apply to parliamentary parties.

GAGELER CJ: Am I right in thinking that you have two points when it comes to justification? Your first point is that the sole purpose of section 135(3) is the original anti‑avoidance purpose, and that can have no application to a parliamentary party.

MR VILLA:   Can I put it slightly differently?

GAGELER CJ:   Please, yes.

MR VILLA:   Your Honours, it is that it does not have as one of its purposes maintaining the integrity of the financial disclosure scheme.

GAGELER CJ:   All right.  So, you admit that it might have other purposes, beyond the original purpose?

MR VILLA:   I do not know that I am admitting it, but I just wanted to be careful.

GAGELER CJ:   Yes.  So, if it does have the financial disclosure purpose, is your answer simply that there is a less restrictive means ‑ ‑ ‑

MR VILLA:   Yes.

GAGELER CJ:   ‑ ‑ ‑ and that is requiring that disclosure to occur on re‑registration.  Is that right?

MR VILLA:   There are a number of different ways you could do it.  One obvious way is to require, as a condition of registration, disclosure of the information that it would have been required to disclose, had it remained a registered political party.  Another way might be by including in the definition of “political entity”, “any political party”, so that the provisions relating to significant third parties would operate differently to the way it does.  But the most obvious one is the first – that is, to require disclosure as a condition of registration.

GLEESON J:   Would that have meant that the transparency register would be in the same form across time, or would it mean that there would be a period where there would be a gap in the information contained in the register?

MR VILLA:   Well, one of the points that we wish to make as to why the purpose that the Commonwealth contends for cannot really be the legislative purpose is because, if that were the purpose, one wonders why the position of a party which has voluntarily deregistered and seeks to re‑register should be any different, for the purposes of the public benefit of financial disclosure, from a political party which wishes to be registered for the first time.

BEECH‑JONES J:   Because we have an interest with parliamentary – there is a justifiable difference, is there not, between a political party that does not have parliamentary representatives and those that do?

MR VILLA:   Can I take that in a number of steps.  The UAP is a party that has parliamentary representatives, so, in that sense, it is no different to a registered political party.  The second thing is ‑ ‑ ‑

BEECH‑JONES J:   But is there not a difference, if you have a party that does not have someone in Parliament that goes off and does not comply with the financial disclosure regimes, and a party that does have a representative in the party and does not comply?  Is there not a particular interest that political parties with political representatives in Parliament comply with those regimes?

MR VILLA:   There is that difference, but that does not explain differentiating between parliamentary parties that are not registered political parties and registered political parties.  So, it gives a reason ‑ ‑ ‑ 

BEECH-JONES J:   Do you mean parliamentary representatives that are independent, that do not have a party, is that what you mean?

MR VILLA:   Or parliamentary representatives who are members of parties that are not registered, such as Senator Babet.  Now, of course, one of the reasons, one of the compelling reasons – and the compelling public interest in financial disclosure must be to enable electors, presumably with the assistance of the other parties and the media, to know, prior to the making of the electoral choice guaranteed to them, who is standing in the background, in terms of providing finance.

GORDON J:   But that obligation for that is met by a continuous disclosure, that is part of the regime – that is, a critical element of the regime is the fact that there is continuous disclosure, because it helps to assist to achieve the purpose of transparency.

MR VILLA:   Your Honour, were there real‑time disclosure – which there is not – then, of course that process would be assisted to an even greater amount.  The point that I wish to make in answer to Justice Beech‑Jones’ question is the information that is available in the transparency register becomes valuable, from an elector’s point of view, if they have that information prior to making the electoral choice.

BEECH-JONES J:   How long prior then, to pick up Justice Gordon’s point?

MR VILLA:   Yes.

BEECH‑JONES J:   Would it not be better for the elector to know it last October than three weeks from now?

MR VILLA:   Quite, your Honour, but, again, the fact that the Commonwealth can do a much better job of putting in a transparency regime does not assist to justify the regime that is currently in place.

GORDON J:   Sorry to interrupt, but the consequence of the voluntary deregistration was that the UAP was not required to file returns that it otherwise would have been required to file.

MR VILLA:   Yes.

GORDON J:   That is the continuous disclosure aspect.

MR VILLA:   But that is a regime ‑ ‑ ‑

GORDON J:   That is in place. 

MR VILLA:   It is also a regime that applies in other ways.  The point that I wanted to make was this, your Honour.  It cannot be seen as part of the transparency regime because if the parliamentary concern was with the disclosure of financial information of a political party prior to registration, there would be no reason to distinguish between the position of a registered party that voluntarily deregisters and, during that interregnum, is not required to disclose, and a new party that sought registration for the first time.

Take this as an example.  Had the independents who are popularly referred to as teal members in fact not stood as independents but had coalesced into a political party and sought registration, the same public interest that there might be in knowing what money is coming to the United Australia Party and what expenditure is being made by the United Australia Party during the electoral cycle that they are shut out of registration is exactly the same as the interests that the public would have in knowing what donations had been made to the Teal Party candidates – on the hypothetical – and what expenditure had been made in the Teal Party candidates in their period before registration.

STEWARD J:   Can I ask you this question.  If you are successful in this matter, will there not be a significant impairment of the informed choice of electors in the lead‑up to the forthcoming election, because they will be unable to know or discover the final data that they would otherwise have known and which might have informed their choice?

MR VILLA:   There is not, with respect, because if we are not successful, candidates are still going to stand and ‑ ‑ ‑

STEWARD J:   But if you are successful, the United Australia Party will go to the next election and voters will be unable to know the financial information they might otherwise have known if you had not deregistered.

MR VILLA:   I accept that, your Honour.

STEWARD J:   That is an impairment on an informed choice.

MR VILLA:   It is not a differential impairment, because it is the same impairment that would arise for a political party seeking registration for the first time.

STEWARD J:   That is not you, though.

MR VILLA:   I accept that.

BEECH‑JONES J:   Your examples about the other independent candidates sort of undermine the point you started with, which is the significance of party affiliation – which is where we started from.

MR VILLA:   It does not, with respect, because there are dynamics in play in particular electorates that enable people without party affiliations to successfully be elected.  But that does not deny the proposition that party affiliation is, nonetheless, an important way of identifying who people might want to vote for.  There are not inconsistent propositions, they just operate in different universes, depending upon the composition of the electorate and the particular policies that are in play, who the other candidates might be, et cetera.

So, again, your Honours, there is no doubt that the Commonwealth could conjure up a much better scheme of disclosure, if one’s concern is – particularly in real time – to be able to divine what money was being spent and what the sources of the money were prior to the exercise of an electoral choice.  But the fact that it could have done it better does not mean that the way they have done it is the constitutionally permissible way.

What we say is that there is an obvious way that they could have done it, which would address your Honour Justice Steward’s concern but not impair the ability to communicate party affiliation, and that is by requiring the UAP or any other party in its position, having voluntarily deregistered – or, indeed, any party seeking registration for the first time – to make, in advance of the registration and, therefore, in advance of the election, the same disclosures that your Honour Justice Steward was concerned would not need to be made.

EDELMAN J:   Is there any information in the special case about the extent of the burden or the effect upon a party seeking to register of having to comply, prior to registration, with all of the financial disclosures?

MR VILLA:   No, your Honour.  I accept that.

EDELMAN J:   We have to assume that there is no real effect on registration, that a party will be no more burdened by registering with the financial disclosures than without.

MR VILLA:   Well, your Honour – I think I understand your Honour’s question.  I would have to accept that a party seeking registration for the first time, if required to comply with those obligations, would be burdened to the extent to which there is an administrative aspect to that, but the ‑ ‑ ‑

BEECH‑JONES J:   Comparing it to your client in that circumstance is difficult, because your client, I think, has been deregistered for one financial year – is that right?

MR VILLA:   Yes.

BEECH‑JONES J:   But on your argument, it would not matter if it was deregistered the day after, I think, Senator Babet was elected, so that would be three financial years.  So, do we compare that and say, well, new parties have to give us their last three years of financial data?

MR VILLA:   Well, that would be one way of doing it.  Of course, the converse, or a different scenario, could have arisen.  That is, the party deregisters the day after Senator Babet is returned and three months later there is a double dissolution election, and so the cycle that is provided – or the preclusion period is only six months.  There is no magic to the three years.  There is no magic to the one electoral cycle.  As I have indicated, that actually is another indication of why it cannot be said that 135(3) even is rationally directed towards maintaining the integrity of the financial disclosure scheme.  But, as I say, even if it is, there is an obvious way of addressing that, which does not burden the freedom in the way that we say it does.

BEECH-JONES J:   Do you accept that in your search for less restrictive means, if you are that limb, the fact that it is voluntary under 135 is relevant?

MR VILLA:   No, we do not.

BEECH-JONES J:   Compared to a position where a party was against its will deregistered and then subject to a burden such as under 136(2)?

MR VILLA:   Your Honour, we say that is constitutionally irrelevant.  There is, of course, the deregistration provisions under section 137 that I have not taken your Honour to, but they are deregistration provisions in which there is no preclusion at all.  So, a deregistration under that provision does not preclude a deregistered party from re‑registering even though, because there is no preclusion period, the effect of that would be that there would not be disclosure of the kind imposed on registered political parties.  Again, that is another reason why the more effective and less burdensome way of achieving meaningful financial disclosure would be to impose that requirement at the registration stage.

Now, to deal with your Honour Justice Edelman’s question, if that burden is only imposed on parties who are seeking to be re‑registered, having been deregistered under 137 or 137 – that is, it does not apply to

political parties seeking registration for the first time – then there is in that scenario no relevant additional administrative burden that would be taken into account in the analysis.

GORDON J:   Can I ask one question about what else goes into the analysis.  It may not be relevant to your client – I do not know – but what do we take into account, if anything, about election funding, which is a benefit of registration?

MR VILLA:   I would have to check the detail in the stated case, but one response might be, in the case of my interests, that having regard to the amount of money that was spent and was available to be spent, that public funding is not a significant aspect of that regime.  But again, it is ‑ ‑ ‑

BEECH‑JONES J:   Sorry.  If your client is re‑registered, can it access public funding at the next election?

MR VILLA:   Yes.

GORDON J:   And it applied for it in its application for re‑registration.

MR VILLA:   Yes, yes.  I just have to check what the relative quantums might to see whether it would be ‑ ‑ ‑

GORDON J:   It is not really the quantums, it is about the structure of the scheme as a whole and the benefits obtained by registration, and then the imposition of obligations in response to those benefits.

MR VILLA:   Yes.  Well, can I say this, your Honour.  The only difference in the funding scheme is that if you are a registered political party, the money goes to the party.  But individual candidates who are not members of registered political parties still get the same funding, it just goes directly to them, rather than through the political party.  So, the status of registration provides an administrative benefit to the Electoral Commission.  It does not change the funding, as we understand the scheme, that is available, ultimately for the benefits of defraying the costs of the campaign.

GORDON J:   Thank you.

MR VILLA:   Your Honours, those are the submissions for the plaintiffs.

GAGELER CJ:   Thank you, Mr Villa.  Mr Solicitor.

MR DONAGHUE:   Your Honours, the plaintiff challenges the validity of a single subsection in a scheme for voluntary regulation of political parties that has formed part of the scheme since it was first created about 40 years ago.  That provision, of course – 135(3) – preventing a party that voluntarily deregisters under the subsection two subsections earlier – 135(1) – from re‑registering until the next election.

Your Honours may have seen in the special case that the United Australia Party was registered until September 2022 – that is paragraph 36 of the special case on page 33 – and, as such, it enjoyed at the last federal election the statutory entitlement to have the affiliation of candidates endorsed by the United Australia Party appear on the ballot paper under section 214, which you have seen.  That actually occurred.  The affiliation was on the ballot, the special case recording that at paragraphs 51 and 52 on page 36 of the book.

The United Australia Party did not lose the statutory entitlement to have party affiliation appear because of the provision it is now challenging, because of 135(3). The change of status that resulted in the loss of the benefit occurred because of its voluntary application under section 135(1). Section 135(3) even arguably imposes a burden in this case because of that choice – a choice presumably made by a registered party knowing of the consequence specified two subsections later. In our submission, that fact is a very significant consideration in assessing both burden and justification for – if you get to it – the impugned provision.

Can I structure our submissions as follows. I will start with identifying some parts of the scheme particularly relating to the transparency purpose we identified that your Honours have not yet been shown and make one or two additional points about the provisions you have seen. Second, I will address the purposes of section 135(3). We accept the original purpose that our friends identify, but we say, even right from the start, there was an additional purpose – the non‑confusion purpose – and that the provision now serves a third purpose, the transparency purpose.

Third, I will address the informed choice implication, with particular focus on Ruddick.  Fourth, I will address the implied freedom challenge, with a particular focus on Mulholland, and why we submit it governs this case and should not be re‑opened.  Finally, extremely briefly, I will say something about question 2, the discrimination argument.

Can I ask your Honours to take up the Electoral Act and go back to section 123 where you saw some definitions that appear at the start of Part XI, concerning the registration of political parties, and you were taken to the definition of “eligible political party”.  I just seek to make the point that, right there at the outset, one can see Parliament making judgments about which political parties will be eligible for registration under these provisions, and it creates criteria.  The “Parliamentary party” is one possibility, so if you have a member of Parliament you can be registered, or, what used to be a requirement, that you have at least 500 members, which, in 2021, became a requirement that you have 1,500 members. 

So, Parliament made an original judgment as to minimum size and then it made a new judgment only a few years ago as to the baseline criteria, but Parliament is immediately demarcating – drawing lines – between political parties, as widely defined, in the definition my friend showed you, and those that are eligible for registration.  That is, we submit, part and parcel of the kind of judgments that one sees through the Electoral Act, that Parliament makes as to the design of our political system. 

GAGELER CJ:   The very analysis in Mulholland, though, suggests that it is not an unconstrained choice.

MR DONAGHUE:   I agree with that, your Honour.  I agree it is not unconstrained.  It needs to survive both the informed choice limitation and the implied freedom limitation.  But, in assessing whether it does, in my submission, the width of Parliament’s available choices is relevant, on the authorities – not unconstrained, but ‑ ‑ ‑

GAGELER CJ:   Yes, but my point is, if it did not say 1,500 – if it said 5,000 or 10,000 – we might have another case.

MR DONAGHUE:   Indeed.  I do not deny that.  But, equally, political parties that do not satisfy those criteria have, in the past, come to this Court and said, it is unreasonable that I cannot have my name on the ballot paper, and this Court has said there is no burden on informed choice and no burden on political communication.  We submit the same reasoning will produce the same result here.

BEECH-JONES J:   I mean, if it said only parties on one part of the political spectrum, that would, obviously, be in trouble.

MR DONAGHUE:   I totally accept that, your Honour.

BEECH-JONES J:   Yes.

MR DONAGHUE:   The system for registration you see under 124 is, of course, only available to eligible political parties.  But even eligible political parties under this system are not required to register – a voluntary choice is to be made:

may be registered –

and the provision that is impugned here, 135(3), is really the flipside of that:  not only is the system voluntary as to whether you opt into it, but it is voluntary as to whether you opt out of it.  It is a truly ‑ ‑ ‑

GORDON J:   You mean 135(1) is the flipside.

MR DONAGHUE:   Sorry, yes, I do, your Honour, thank you.  You can opt in, and you can opt out.  So, it is not required for political parties to form part of the system, but if they do, then they must be registered on the register created under 125, which can be inspected under 139 – I do not need to take you there – and since the creation of the transparency register, that register can also be made available via the transparency register and accessed through the internet.

The transparency register is 187N, but I will not take you there.  But you can see in 125(2) that the provision contemplates that the register may be included, as it has been.  You have been shown 126 and 133, so I will not go there.  If you could just go back to 135.  So, it is in subsection (1), the party:

shall be deregistered –

so, they have a right to opt out.  Then, when they do, under subsection (3), there is the limitation imposed which has two distinct links – the party deregistered under (1):

Where a political party is deregistered under subsection (1), that party –

that is the first limb:

or a party that has a name that so nearly resembles the name of the deregistered party that it is likely to be confused with or mistaken for that name –

that is the second limb:

is ineligible for registration . . . until after the general election –

Our friends, as I understood the submission, denied that this section has an anti‑confusion purpose.  I will come to develop it, but I just ask your Honours to note that it is difficult to give work to what I have called the second limb if it does not have an anti‑confusion purpose, because, in its terms that it what the words are concerned with.  They are concerned with preventing the registration of a party where it has a name that is “likely to be confused” or “mistaken”.

So, we, with respect, do not really understand how it can be denied that one of the purposes served is the anti‑confusion purpose.  The primary relief that our friends seek is the complete invalidity of section 135.  In their alternative, they seek orders that it does not apply to parliamentary parties, but, really, your Honours have heard no argument that is capable of supporting a complete invalidation of 135(3).  Your Honours have already noted the evident overlap between 135(3) and 136(2), and the matching ‑ ‑ ‑

EDELMAN J:   I take it that you do not accept that 135(3) is severable from 135(1) and (2)?

MR DONAGHUE:   Your Honour, we have not advanced an argument against the severance of 135(3).  It would be possible to allow a party to opt out but to still be deregistered within the cycle.  I do not contend it is not severable.

I do not need to add to what our friends have said on the benefits side of – the benefits that come from registration, the bulk nominations and nominations not needing to be signed by 100 electors, et cetera.  I do point out, without taking your Honours back to it, that the sections – 168 and 169 – that allow for party affiliation to appear on the ballot paper start with a power for registered parties to “request” that their name appears.  But, again, there is no obligation.  So, even if a party opts into the registration system, that does not automatically mean their name will appear on the ballot.  They have to make another decision there.

I am emphasising those discretionary decisions because our friends are, as we apprehend it, trying to escape the fact that this is all a consequence of their own voluntary decisions by inviting your Honours to focus not on their side of the balance, but on the electors’ side, and the electors’ right – so‑called right – to receive information about party affiliation.  But they do not have such a right unless the political party makes various discretionary decisions under this regime.  Ultimately, in our submission, the right that our friends are attempting to rely on is just the flipside of the coin, and that recasting of the argument does not relevantly change the burden analysis.

GAGELER CJ:   Mr Solicitor, can I just ask a question about section 136(2).

MR DONAGHUE:   Yes, your Honour.

GAGELER CJ:   Only because it is proximate and similar.  What are its purposes or purpose?

MR DONAGHUE:   So, it has the anti‑confusion purpose – if I can call it that, in shorthand ‑ ‑ ‑

GAGELER CJ:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ is the same as between the two provisions, but it does not have or does not so obviously have the transparency purpose, because it is not engaged by voluntary conduct on the part of the party.  So, it is, in my submission, principally serving the purpose that without it, the whole provision would be pointless.  There is no reason to have a mandatory deregistration of a party that has not endorsed a candidate for four years if, the next day, the party can re‑register.

It is really a flipside of, once one has a mandatory deregistration process, it has to have a consequence of requiring you to go back through the registration process.  But it, within an electoral cycle, produces certainty, avoids confusion, by preventing just a rolling deregistration, re‑registration process.

But I think what probably matters, for my answer to your Honour, is that it does not have the anti‑avoidance purpose that originally actuated 135(3), for obvious reasons.  What was agitating parliamentarians there was that they thought that a party that realised it was just about to be deregistered could voluntarily deregister under 135(1), escape 136(2) and then re‑register.  So, that purpose has no application to 136.  Avoiding transparency does not really seem apt, for the reasons that I have identified.  So, I think its principal purpose is the anti‑confusion purpose.

BEECH‑JONES J:   And 136(3)’s purpose?

MR DONAGHUE:   So, 136(3), as my learned friend indicated, was a product of the fact that senators with a six‑year term might have needed to run candidates in the mid‑cycle election in order to avoid their party being deregistered.  And Senator Harradine pointed that out in the debate and the government accepted that that was a fair point, and that was what led to the introduction of subsection (3).

BEECH‑JONES J:   But you also say that, picked up by that, is that they will then comply with the obligations under the Act?

MR DONAGHUE:   They will then comply with the obligations under the Act, subject to 135(1).

BEECH‑JONES J:   Of course, yes.

MR DONAGHUE:   That then comes back to my – because, if one then has 135(1) without 135(3), it produces the possibility of creating both the confusion and the transparency concerns that we have developed.  Can I say something to your Honours, or take your Honours to some provisions you have not yet seen, about the other side of the registration equation.  So, our friends invite your Honours to focus just on the benefits that they would get from registration and what they say they lose as a result of not being registered, but they have not focused at all on the obligations side.

We have addressed that in writing at 12 to 16 of our submissions.  Orally, I just propose to take your Honours to the provisions dealing with annual returns and to show your Honours how the scheme works, because it is a scheme that draws a marked distinction between registered political parties and others, so it is just not right to say that registered parties are just a background factor and that there is no significance to your capacity to register or deregister within this wider transparency regime, because it is a scheme that distinguishes different obligations on different players, depending on their status.  Can you start with 314AB, which is in the other volume of the Electoral Act.  It is in Part XX.

GAGELER CJ:   When were these provisions inserted?

MR DONAGHUE:   So, there is no straightforward answer to that, because they changed over time.  There was a provision like the one I am about to take your Honour to since 1991, in relation to registered political parties, and there were also provisions about third parties, and then there were new provisions that now deal with what are called significant third parties and associated entities, and they came in over time.  Our submissions trace the details.  I am focusing on the Act as it stands now, because that is the Act that was relevant both at the point of deregistration and now the re‑registration application.

So, for registered political parties, if you look at 314AB, there is an annual return obligation which applies both to registered political parties and significant third parties – which I will come to – the effect of which is that the registered party must provide an annual return at the end of each financial year, and the return is required, under subsection (2), to “set out”:

(i)the total amount received by, or on behalf of, the . . . party . . . during the financial year –

and including:

the details required by section 314AC –

which I am going to come to in a moment.  So, the total amounts received, the total amounts paid, all debts incurred, and, for significant third parties, total electoral expenditure.  Then, if you go on to 314AC:

If the sum of all amounts received by, or on behalf of, a registered political party . . . during a financial year is more than the disclosure threshold –

Which is a defined term.  It was, in the Act, $13,000, but it is indexed, so it is currently $16,900.  So, if the sum of all the amounts received by, or on behalf of, a registered party during a financial year is more than, now, $16,900, the annual return:

must . . . include the particulars of that sum.

The particulars, being set out in subsection (3):

the amount of the sum and –

summarising – details as to who provided it.  So, at the end of subsection (3), you see:

(c)in any other case—the name and address of the . . . organisation.

So, registered parties have to give details of all of the money that comes in, all of the money that goes out and, in respect of significant amounts – any amount more than $16,900 – who it comes from.  All of that information needs to be available.

It is not limited to just reporting on the electoral expenditure – and I emphasise that because you will see that the other provisions I am about to come to are – and it does not require retrospective disclosure of amounts received in prior financial years, because it, in our submission, assumes continuity of registration.  So, each year you provide an annual return and you just deal with what happened in that financial year.  That point is significant because once you can start coming in and out of the scheme, if you can, that will create gaps, for reasons I will develop in a moment.

GORDON J:   I am sure it is not relevant, but what are 314AB(2)(b):

discretionary benefits . . . received by . . . from the Commonwealth –

MR DONAGHUE:   “Commonwealth, a State or a Territory” – I do not know, your Honour.  Can I take that on notice, and I will come back to you?

GORDON J:   It may not be relevant.

MR DONAGHUE:   Can I ask your Honours to contrast that regime with the regime that applies to third parties, starting with the definition of “third party” in section 287 of the Act, which is defined as:

a person or entity (except a political entity –

and your Honours saw the definition of “political entity” at the start of my friend’s submission, but it includes a registered political party.  So, if you are a registered political party, you are not a third party because, if you are a registered political party, you are subject to the obligations that I just took your Honours to.  So:

a person or entity –

who is not a registered political party

if:

(a)the amount of electoral expenditure –

a defined term I will come to:

incurred by or with the authority of the person or entity during the financial year is more than the disclosure threshold –

the same threshold I identified before:

and

(b)the person or entity is not required to be, and is not, registered as a significant third party –

So, this is a regime that picks you up if you are a person or entity who is not a registered party and not a significant third party, but it only captures such a person if they incur an amount of electoral expenditure during a particular financial year that is more than the disclosure threshold.  I will not take your Honours to the definitions, but “electoral expenditure” is defined in 287AB, as:

expenditure incurred –

in relation to an election or:

for the dominant purpose of creating or communicating electoral matter –

And “electoral matter” is defined in section 4AA as:

matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote –

If you are a third party, then you are subject to the obligations in sections 314AEB and AEC.  Could I ask your Honours to go to those.  First, to 314AEB, which imposes the obligation to provide for a financial year a return: 

a return for a financial year . . . if the person or entity is a third party during the year.

So, the obligation only applies if in any particular year the person meets the definition, and as your Honours saw, the person will meet the definition in any particular year only if they incur an amount of electoral expenditure above the threshold.  If you are a third party during a particular year, then the return has to include the information set out in (2):

details of the electoral expenditure incurred –

and:

a statement that the third party complied with section 302E –

which is a restriction on donations from foreign donors.  The next section, 314AEC, deals with disclosure of gifts received or donations, and it applies only where: 

the person or entity is required to provide a return –

under the previous section.  So, you have to be a third party in the particular year, and: 

the person or entity received a gift or gifts, at any time, that the person or entity used during the year –

So, that is a section that does reach back to other financial years and require disclosure, but it only requires them in the year in which the donation is used:

to enable the person or entity to incur electoral expenditure –

What we submit about that definition is that one can fairly readily see how the disclosure obligations might be avoided or severely minimised by a third party in the years between elections.  We say that because the obligation is triggered by expenditure, not by receipt.  The status as a third party is triggered by expenditure, not by receipt.

If a person or entity does not incur expenditure for the dominant purpose of the influencing of electors in a particular financial year, or incurs expenditure only under the threshold, it is not a third party for that year, which means it has no obligation to disclose expenditure, it has no obligation to disclose donations it receives in that year of any amount – can be millions of dollars, and the United Australia Party, as you can see in the special case, receives millions of dollars from Mineralogy, Mr Palmer’s company, in all of the years in which did file returns – but irrespective of the size, they do not need to be disclosed if you are a third party, as long as you are not spending money in that particular year.

There is also no prohibition on receiving donations from foreign donors under 302E as long as you are not a third party in the relevant financial year.  So, there is significant non‑disclosure benefits for a party taking itself out of the registered political party category and potentially into the third party regime.

Now, it is true, if the party stays a third party, that if it then spends the money that it may have received in previous years in an election year, it will then be subject to disclosure obligations under the provision you have just seen under 314AEB.  It would have to disclose the expenditure, and it would have to, under 314AEC, disclose the gift received “at any time” – so, including in the previous years – but that disclosure does not occur under the Act until early February in the next calendar year.

So, the party can quite readily produce a situation in which, even if it does have to disclose as a third party, that disclosure all occurs after the election.  Too late to inform the electoral choices of voters at the election.  But the situation might, actually, even be worse than that because if 315(3) is invalid – so, if you can opt in and out of the registration scheme – then it is possible, in our submission, for a party to opt out, not spend any money – and so not be subject to any disclosure obligations as a third party – and then opt back in to the registered scheme at which point it has to file a financial return for that financial year but it does not have to say anything about what happened in the earlier financial years because that regime assumes continuity.

It does not have disclose prior donations as a third party because once it is a registered political party, it is not a third party anymore, so it is not caught by AEC, and the system has just been cracked by reason of the fact that a party is not bound by its decision to opt out under 315.  So, when we submit that 315(3) plays a critical role in the transparency regime, we submit it for the reason I have just tried to articulate. 

GAGELER CJ:   Mr Solicitor, this is part of the argument that is put against you in a slightly modified form, perhaps, but there is nothing in the Act that prevents an entity that has been a third party seeking registration as a political party, is there?  This is the new party argument that is put against you.

MR DONAGHUE:   The new party argument, yes.

GAGELER CJ:   In which case, there would have been previous non‑disclosure.  What is your response to that argument?

MR DONAGHUE:   So, if it was a third party before, then it will have been required to disclose under the third party regime, albeit with all the limits I have just been identifying.  But my essential response is that lines have to be drawn somewhere in the creation of an electoral system and, for the reasons Justice Edelman identified in a question to my friend, it is not without cost to impose upon someone, who seeks to be a participant in the political system, a requirement to reach back in time to report everything that has gone before.

We submit, Parliament, in a rational and reasonable design of the scheme, can say, once you are a political party – a registered political party – these are the rules that apply to you and not allow their manipulation by opting in and out.  Even if it be the case that that is not perfect, it would be open to objection, albeit on different grounds, if we created a different scheme and imposed more barriers to entry for new parties into the political system.

Essentially, I say, well, even if it is the case that you can become a new party without incurring the same obligations as our previous party, that does not demonstrate that this is not a proper, fully justifiable scheme.  The other thing that I would add to that, your Honour, is that – and I will develop this – one only produces a burden of the kind our friends to seek to agitate by taking 315 in isolation out of the balance of the wider scheme.

STEWARD J:   Do you mean 135?

MR DONAGHUE:   I am sorry, I do mean 135.  I have taken up confusing my numbers, your Honour.  I mean 135.  We submit that the role 135 actually plays is that it encourages a party to accept both the benefits and the obligations of registration.  If a party accepts both the benefits and the obligations, it gets the ballot paper benefits that our friends want, but it also accepts the transparency obligations.  A new party coming into the scheme will get the benefits and incur, going forward, the obligations, but we do not accept that it is a proper mode of conducting the counterfactual analysis to split it up and take the benefits and ignore the associated obligations.  Your Honours in the majority in Ruddick said something similar, and I will come to that after lunch.  I note the time, your Honour.

GAGELER CJ:   Thank you.  We will take the luncheon adjournment.

AT 12.52 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

MR DONAGHUE:   Your Honours, before the break, Justice Gordon asked me a question about the meaning of “discretionary benefits” in the paragraph that was included in the disclosure requirements for political parties.  That is not a defined term in the Act.  There is a reference to it in the explanatory memorandum to the Bill which introduced it, which we have in the materials.  It is behind volume 8, tab 33, the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2018.  The paragraph in question is paragraph 336 on page 73.  It is not particularly informative, but it refers to:

Discretionary benefits includes grants, contracts, payments and other benefits requiring the exercise of discretion by the Commonwealth or State or Territory.

That is all it tells us.

GORDON J:   Thank you for your help.  I am very grateful.

MR DONAGHUE:   Your Honours, I had almost finished dealing with the disclosure provisions in the Act that we say support our transparency purpose.  What I need to do is direct your Honours briefly to the significant third party and associate entity provisions, as well.  You might recall in the provisions I took you too about registered political parties the same obligations were imposed with respect to significant third parties.

So, there are the two regimes I have shown you – the political party regime and the third party regime – and, in a sense, sitting between them there is a category of significant third parties.  That concept is defined in section 287F of the Act, so if your Honours could turn to that.  Essentially, this is important because, even following voluntary deregistration of a political party, if it is a significant third party, it will have the same reporting obligations as it had before.  So, that is where this fits within the scheme.  The definition you will see in 287F excludes a political entity – so, again, if you were a registered party, you cannot be a significant third party – but:

A person or entity . . . must be registered . . . as a significant third party . . . if –

it satisfies the requirements in (a), (b) or (c):

(a)the amount of electoral expenditure incurred by or with the authority of the . . . entity during . . . any one of the previous 3 financial years is $250,000 or more; or –

at least a third of its revenue is expended on electoral expenditure, or it operates for the dominant purpose of raising funds for the purpose of electoral expenditure.

We accept that this regime came in well after the regime that was regulating political parties, and it does create the possibility that sometimes, for some political parties, deregistration will not allow them to circumvent the disclosure regime, because they will come out of the regime for political parties but they will still be captured as significant third parties.

But, particularly for parties that incur less than a quarter of a million  in electoral expenditure in a single year, the regime may not capture them.  It may be that this is what the United Australia Party sought to do, because we do know from the special case that it has not registered as a significant third party, and you see that in paragraph 60 of the special case.  So, however this provision may or may not apply, depending on whatever the facts are in relation to the United Australia Party, the fact is that, having deregistered, the information that would have been required, had they remained registered, is not available to electors.

GORDON J:   Can I ask a question about that.  It says that:

A person or entity . . . must be registered for a financial year as a significant third party –

if certain requirements are met – does that mean that, given the facts in the special case book, one is to take as the fact that they were not a significant – or they just were simply not registered as a significant third party?

MR DONAGHUE:   Well, we know that they are not registered.

GORDON J:   No, I understand that.

MR DONAGHUE:   We do not know ‑ ‑ ‑

GORDON J:   The special case book does not take the one step further.

MR DONAGHUE:   It does not take us to the point of telling whether or not any of these criteria apply.

GORDON J:   I see.

MR DONAGHUE:   So, if we assume that the United Australia Party is complying with the legislated obligation, then your Honours might infer, therefore, that it does not fall within any of (a), (b) or (c).

GORDON J:   Does that work against you?

MR DONAGHUE:   Well, in my submission, not, because it shows – remembering that this regime sits between third parties and – it shows that it is possible if, by deregistration, to avoid the disclosure obligations that would otherwise have applied, because they have avoided them because they are not registered, and they have not been caught by the safety net of “significant third parties”.  So, they are then third parties only, and that requires you only to disclose expenditure ‑ ‑ ‑

GORDON J:   After the event.

MR DONAGHUE:   ‑ ‑ ‑ after the event, and only to disclose donations after the event, and only if you are a third party for the particular year.  So, in my submission, it does not work against us.

The final point that I would seek to make about this regime is the Act also has disclosure obligations that are imposed upon what it calls “associated” entities.  Those obligations are found in section 314AEA.  Again, it is an obligation to file a return for a financial year:

If an entity is an associated entity at any time during a financial year –

and what has to be disclosed is:

the total amount received by, or on behalf of, the entity –

and the details under 314AC, which your Honours have seen, which discloses the identity of the donor, and:

the total amount paid by, or on behalf of, the entity –

The concept of “associated entity” is defined in 287H of the Act.  When your Honours have that, you will see – very strikingly – that all but one of the paragraphs in 287H(1) link to a registered political party.  So, not only does deregistration potentially have disclosure implications for the party itself, but associated entities or bodies that were previously associated entities, because they had one of the identified connections with a registered political party, may cease to be associated entities by reason of that deregistration, so they will not have to disclose either.  The only complexity that potentially arises is that paragraph (1)(g) requires – or catches, rather, as an associated entity, an entity that:

operates wholly, or to a significant extent, for the benefit of one or more disclosure entities –

A “disclosure entity” is defined in 321B, your Honours do not need to go there, but it includes a significant third party or it includes, to be more precise – because if your Honours look at 287H(4), you can see:

The reference in paragraph (1)(g) to a disclosure entity is a reference to a person or entity that is covered –

by certain specified paragraphs:

of the definition of disclosure entity –

one of which is:

a significant third party –

So, without wanting to descend any more into the entrails of the Act than I have, really, the point is that deregistration might well mean that entities that would otherwise have had associated entity disclosure obligations do not have them anymore.  That will not be the case if the deregistered party is a significant third party but, as I have just explained, that will not plug the gap entirely.

So, it might be, in a practical sense, for example, that Mineralogy no longer has disclosure obligations as an associated entity that it might have had previously, particularly because – as your Honours have seen in 287H(1)(g) – the entity has to operate wholly or to a significant extent for the benefit of the disclosure entity, and a big private company like Mineralogy may well not meet that definition.

GLEESON J:   We do not have any facts about whether Mineralogy is an associated entity, do we?

MR DONAGHUE:   Other than that it does not appear on the transparency register, which it would have to do if it had filed annual returns in accordance with those provisions – that is all we know.

GORDON J:   Are there any other associated entities related to the registered political party?

MR DONAGHUE:   Are there any others?  I think there are no associated entities disclosed with respect to the UAP.

GORDON J:   So, just so I am clear, at one end of the spectrum we have registered political parties and associated entities.

MR DONAGHUE:   At one end of the spectrum?

GORDON J:   In terms of obligations and requirements for disclosure, I meant to say.

MR DONAGHUE:   Probably, it is fair to say, at one end of the spectrum you have registered political parties and significant third parties.

GORDON J:   I was going to put them in a middle category.

MR DONAGHUE:   The spectrum is a complicated idea, because if you are a significant third party, you have the same disclosure obligations as a registered political party.

GORDON J:   All right, we will put them into the one bucket, that is fine.

MR DONAGHUE:   Yes.

GORDON J:   But you may not have associated entities of significant third parties, but you may very well have with registered political parties.

MR DONAGHUE:   Yes – much more likely to, for registered political parties.

GORDON J:   That is the point I was trying to make.

MR DONAGHUE:   Yes, exactly.

GORDON J:   Then, at the other end is the third parties?

MR DONAGHUE:   Yes.

GORDON J:   And your point that you seek to make is that there is a lacuna in the middle which can arise in circumstances where you have a registered political party that seeks to voluntarily register and then voluntarily deregister.

MR DONAGHUE:   Yes.  So, there are really two gaps I am seeking to identify.  One is a temporal point.  So, if you move from one to the other and you do have to disclose as a third party, that disclosure may well happen – instead of the continuous disclosure every year required of a registered political party, you might only disclose after the election and that then burdens informed choice – that is point one.

GORDON J:   And it is only for a particular year.

MR DONAGHUE:   And only for a particular year – yes, if you are a third party, you will have to disclose donations for previous years, that is right.

The other point is that it seems that, by moving backwards and forwards between the regimes, you could create a gap that means you never need to disclose past donations as long as those donations were received in a year where the party did not incur significant electoral expenditure.  It could produce a situation where it never tells you where its money came from.  And 135(3) stops that.

BEECH‑JONES J:   So, the link between that regime and the purpose, you say you just get that from the text of 135 and 136 and the fact of continued registration?

MR DONAGHUE:   Yes, and the fact that Parliament has built these disclosure regimes in large part on the basis of status as a registered party.

BEECH‑JONES J:   Do you say we would need to go through the various debates and all that?

MR DONAGHUE:   No.  They will not actually help you, your Honour, because the debates at the time 135(3) was enacted precede the enactment of this disclosure regime and they do, as our friends say, support the anti‑avoidance purpose in relation to 136.  If our friend was correct that that was the only purpose of 135(3), then the Commonwealth loses this case, because 136 has never applied to parliamentary parties.  So, the anti‑avoidance purpose for 136 could never have supported the operation of 135 in relation to a parliamentary party.

GAGELER CJ:   You have proffered three purposes.

MR DONAGHUE:   Yes.

GAGELER CJ:   The anti‑avoidance purpose, really, is just not operative any longer, in relation to a parliamentary party.

MR DONAGHUE:   That is correct, yes.

GAGELER CJ: So, we put that to one side. The anti‑confusion purpose really is a purpose that explains the second part of section 135(3), with which we are not concerned in this case.

MR DONAGHUE:   But which is challenged, because it is said the whole provision is invalid.

GAGELER CJ:   Of course, but if you are looking at the operative bit, it is the first part, and it is not the purpose of the first part.

MR DONAGHUE:   No.  The only qualification I would place on that answer is that the section distinguishes between that party and another party whose name might be confused.  We make, in writing, the point that because we are here concerned commonly with unincorporated associations, it might not always be totally straightforward to know whether you are dealing with the same party or with a different party with the same name.

I think we proffered the example of if Mr Palmer deregistered the UAP but Senator Babet then sought, a year later, to re‑register the party with the same constitution and many but not all of the same 1500 members, is it the same party or a different party?  The two limbs avoid the need to answer that question in the period immediately before an election, because, either way, you cannot be re‑registered.  If you did not have the two limbs, you might have to answer it – and you might have to answer it urgently, as the late application in this case shows – and it might not be an easy question to answer.  So, the anti‑confusion purpose blurs in, a little bit, to the first limb, as your Honour puts it to me.

GAGELER CJ:   Yes, I see.  But the weight of your argument is, really, on the transparency purpose.

MR DONAGHUE:   The weight of the argument is on the transparency purpose, that is right.  And it works, I think I have probably developed sufficiently how I say we get to that purpose, as I have been taking your Honours through the regime, so I do not know that I need to add anything further, unless your Honours have any questions on how we say that purpose is engaged.

Can I come, then, to the informed choice part of the case, question 1 on the special case, and start with the proposition that while we, of course, accept that section 7 and 24 of the Constitution do impose a limit on Commonwealth legislative power to burden informed choices, we also submit that on many occasions, including most recently in Ruddick, in some passages that I will come to, the Court has emphasised that the Constitution, as a matter of deliberate design, commits to the Commonwealth Parliament what the Court has called “a wide leeway of choice” to legislate for every aspect of the electoral process, even concerning “fundamental features” of its operation.

So that, while we accept there is a constitutional limit on power, it is a limit that must be applied bearing in mind that much of the design responsibility for our electoral system resides with the Parliament, including in relation to fundamental features of the system.  Chief Justice Gleeson in Mulholland pointed out it extends to expanding the franchise, compulsory voting, preferential voting, proportional representation in the Senate, the number of electoral divisions, the nomination of candidates and, we would add, the system for the registration of political parties.

That is not to say that this Court cannot scrutinise any of those things, but it is to say that when you are looking at a provision – as you are in this case – concerning the re‑registration of a party that has voluntarily deregistered and that prohibits that only until the next election, we submit that that is squarely within the area of leeway that Parliament is allowed in designing a registration system.  This is not a case, unlike Mulholland or Ruddick, where there was a change to the rules that meant that a previously registered party might not be able to maintain that status.

Now, even in that harder category of case, the Court held there was no burden on direct or informed choice.  But this case is, in my submission, far easier, because the party is exposed to this consequence only because it did something that it knew would have a consequence under the election system – a temporary consequence – it did the thing anyway, and now the consequence is being imposed upon it.

GAGELER CJ:   Mr Solicitor, are we looking at the wrong thing here?  If we talk about informed choice, are we not looking at the choice available to the voters at the election?  I just wonder how useful it is for this part of the argument, the burden part of the argument, to be focusing on the discretion given by the statute to the political party at an earlier stage.

MR DONAGHUE:   Your Honour, our friends could have challenged – or perhaps could have challenged – what they are actually complaining about is the fact that the benefit conferred by 214 of the Electoral Act only applies to registered political parties, rather than to political parties more generally, and they are seeking to expand the availability of that benefit.  But they are doing that by attacking what we called in our written submissions a sort of hinge that underpins the link between the obligations and the benefits at registration.

In my submission, given the way that has been framed, they have brought in a need to look more generally at the choices and the system because, in our submission, when one is looking at whether there is a burden on informed choice, and this may be a matter for debate, but in our submission, one looks at the integrated scheme that underpins the entitlement under 214, not just the bit they do not like.  So, in our submission, our ‑ ‑ ‑

EDELMAN J:   This is your Levy point though, is it not?  Is there a burden point independently of the Levy‑type point?

MR DONAGHUE:   In my submission, there is, your Honour, yes, and we would distinguish between the burden analysis as it applies in an implied freedom context and the burden analysis as it implies at the informed choice for this reason, and the Levy point we deploy in the context of the implied freedom and we do not deploy in the context of the informed choice, the reason being that in the implied freedom context, as your Honours know, the burden test is usually fairly readily satisfied. 

The reason it was not satisfied in Levy, Mulholland, Ruddick, was because, while one, generally speaking, has a common law liberty to engage in political communication of whichever kind one seeks and a law that cuts that back will burden the freedom, it did not in a context where the only form of communication in issue was on the ballot paper and the only way anything gets on the ballot paper is by reason of a statutory entitlement to do so.  So, there was no burdening of any common law liberty.

EDELMAN J: But how is that different to the argument you are making now in relation to the first point, the section 7 and 24 direct point?

MR DONAGHUE: It is different because, in the context of section 7 and 24, in my submission, one does not start by looking at a common law liberty to do anything, one instead looks at the question of – that the question is: is there a burden on the choice created by the electoral system? We submit, for reasons I will come to, that the proper analysis is to look at the net effect on choice of the scheme that is in play.

STEWARD J:   Is another way of putting it, Mr Solicitor, that the possible relevance of the voluntary nature – or the actions taking place here – is to focus attention upon where the burden is coming from?  So, for example, if the burden is said to be the lack of party affiliation appearing on the ballot paper, that might have arisen by the United Australia Party not asking the Electoral Commission to put their party affiliation on the ballot paper.  Then, if that is the burden, it was wholly because of what they decided to do.

MR DONAGHUE:   Indeed, your Honour.  As I said in opening, they were on the ballot paper last time.  The reason they are not on the ballot paper this time is they made an application under 135(1).  If they had not made that application, they would be on the ballot this time as well.

STEWARD J:   Because we are not concerned of burdens at large, we are concerned of burdens that arise by reason of a Commonwealth law.

MR DONAGHUE:   Yes, a Commonwealth law.  Part of our reason for submitting that if there is a burden here at all it is a very slight one is because it is a burden that will only apply to a party that chooses to subject itself to that burden.  The point that I am seeking to make as to the difference between the two steps is to say that we would, for example, accept that a ballot paper that put the name of the incumbent candidate on and said, you can vote for someone else but only if you write in their name, that that would be invalid under the informed choice limb.  It would be invalid, notwithstanding the fact that someone does not have any common law right or liberty to control the content of the ballot paper.

EDELMAN J:   But the Levy‑type analysis is not confined to common law rights and liberties, it is concerned with what is the inseverable part of the statutory package that is being provided.  The counterfactual is everything apart from that inseverable part of the statutory package.  So, once you say that 135(3) is severable from everything else, it seems to me that you are effectively rejecting that type of burden analysis.

MR DONAGHUE:   Your Honour, for reasons that I will come to in a little while if I can, we respectfully submit that severability is not the key to that part of the analysis and, indeed, in my submission, I say that illustratively because if one takes Ruddick, for example, where there was a new provision being added to the registration scheme about overlapping names, if the law in Ruddick had been held to be invalid, it would not have brought down the whole registration scheme.  Indeed, no one suggested that it would have brought down the whole registration scheme. 

Those provisions would have been invalid, but the registration scheme would have remained.  Why?  Because they were not a severable – sorry, they were a severable part of the scheme.  It is not, in my submission, severance, but it is about the integrated effect of the effect on choice.  So, the effect on choice here of 135 is partly to stop a party reacquiring an entitlement to have its name on the ballot.

BEECH-JONES J:   But whose choice did you mean in that submission?  The choice of the party or the choice of the voters?

MR DONAGHUE:   I think choice of voters is ultimately where the focus has to be, but the likely effect within the scheme of 135(3) will be that registered political parties stay registered because ‑ ‑ ‑

GORDON J:   Could you put that submission again?

MR DONAGHUE:   In my submission, the way the scheme is supposed to work, and would ordinarily work, is that a registered political party, because it wants to have its name on the ballot paper at the next election, will stay registered.  Because it stays registered, it will comply with its disclosure obligations, and so the voter at the election will have a situation where they both have the party name and they know where the money is coming from, and so the net effect of that scheme is to enhance voter choice.

GLEESON J:   And is the likely effect of the scheme that any parliamentary party will be registered?

MR DONAGHUE:   Yes.  There was some question about that when it was first enacted in 1983, which was quickly dispelled as everybody registered, and that is really how the scheme has worked since then.  So, it is only by invalidating or cutting out 135(3) that one creates the situation where a party might think:  I can have the benefit of being on the ballot paper without needing to worry about the transparency.

BEECH-JONES J:   I understand all that.  I am only querying whether we are talking burden or justification.

MR DONAGHUE:   Your Honour, I will ultimately, if I need to, submit that that provides a justification.  But if one looks at the net effect and the net effect is in fact to enhance voter choices, then you do not get to justification.

GORDON J:   By “net effect”, you mean the interaction of all of the provisions giving rise to obligations and benefits.

MR DONAGHUE:   Yes.

GORDON J:   That is the package the scheme ‑ ‑ ‑

MR DONAGHUE: The package. Because, in my submission, sections 7 and 24, the “informed choice” implication, does not provide any warrant for a plaintiff to come to court and ask this Court to start severing benefits and burdens of the registration scheme, because that is effectively to ask the Court to engage in legislative redesign. The trade‑offs that Parliament has made ‑ ‑ ‑

EDELMAN J:   I mean, your submission is effectively that it cannot be a burden on the 7 and 24 implied choice or, arguably, the implied freedom for a plaintiff to say, I have not been given all of the benefits that I want under the scheme that has been provided.  That still invites the question of, well, what is the baseline scheme?  That is why it looks to me a lot like the same type of analysis as Levy, which is asking:  what is your baseline for saying what the burden is?  Is your baseline just 135(3) by itself, or is your baseline 135(3) in the context of the whole scheme of benefits that have been provided?

MR DONAGHUE:   Your Honour, the baseline in Levy – I am sorry, not Levy ‑ ‑ ‑

EDELMAN J:   Levy was slightly different, because ‑ ‑ ‑

MR DONAGHUE:   Levy was different.

EDELMAN J:   ‑ ‑ ‑ it was being compared with a common law freedom, as in Brown.

MR DONAGHUE:   Better to say Mulholland.  The baseline in Mulholland is that – where the complaint is the same.  The complainant in Mulholland is concerned that the name of the party will not appear on the ballot paper, so the burden for which they contended was the same.  Five members of the Court say, no burden.  In my submission, the reason that they say, no burden, is because the registration provision challenged there did potentially have the consequence that the party affiliation could not appear on the ballot paper – same effect – but did not stop you communicating in any other way.

When one gets to the ballot paper, the Court said, well, the entitlement under 214 to appear on the ballot paper is a conditional entitlement; you have never had anything more than the conditional entitlement, and so you cannot complain that that entitlement has been burdened, because it was only conferred in terms that were subject to the conditions.

GORDON J:   I understand that is the way you put it, but I had understood your net effect argument to be a different argument.

MR DONAGHUE:   It is.  Your Honour understood correctly.  So, I was answering Justice Edelman about what we say about the implied freedom, what I say about the net effect on the 7 and 24 informed choice is different, as your Honour just puts to me.

GAGELER CJ:   Can we go back to your example of what would be a burden?

MR DONAGHUE:   Yes.

GAGELER CJ:   And I think you said an invalid burden on an informed choice.

MR DONAGHUE:   I did.

GAGELER CJ:   As I understand it, it is a ballot paper that says you can tick the incumbent candidate to vote, but you have to write in the name of another candidate.  Is that ‑ ‑ ‑

MR DONAGHUE:   That was my example.  I was trying to choose something pretty clearly invalid.

GAGELER CJ:   Yes, but why?  Why is that invalid, and what are you taking into account in conceding that to be invalid?  Is it more than simply informed choice?  There must be an element of equality involved in that.  Then, the second part of the question – no, start with the first one.

MR DONAGHUE:   So, once one accepts that there is a constitutional requirement arising out of 7 and 24 that there be informed choice, a form of electoral law that hides the nature of the choice by identifying an incumbent candidate and saying you only get to choose someone else if you can come into the ballot box with the knowledge of who that someone else is and accurately write their name onto the ballot paper would be, in my submission, something that would make it sufficiently hard to exercise the informed choice that you would get to the second stage of the analysis arising out of Rowe and Roach and there would need to be a justification for it.  At the moment, I cannot conceive how a law of that kind could possibly be justified and, therefore, I am conceding its invalidity.

GAGELER CJ:   Would a variation of your example, where the ballot paper had the name of the incumbent candidate in 14‑point bolded font and the names of the other candidates in a much smaller font also suffer the same problem?

MR DONAGHUE:   It likely would.  But, obviously, there are – this example does not come with some of the – or it does not come with the nuance or, I would say, strength of the argument I am actually advancing on the real case, here, because there is no net effect analysis to be engaged in, where you are privileging an incumbent by the design of the ballot paper.

GAGELER CJ:   Okay.  So, the net effect analysis comes in here.  Why? 

MR DONAGHUE:   In this case?

GAGELER CJ:   Yes, as distinct from a case where a party or a candidate is privileged by some other means.

MR DONAGHUE:   It comes in here because the way that the system has been designed, says, and has always said, that – as your Honour knows, for 80 years, party affiliation did not appear on the ballot paper at all.  It came in at the same time as the party registration scheme, as part of a package that partly included above the line voting, included party affiliation, included public funding, included a whole range of things, now includes transparency.  And Parliament did not confer that benefit in absolute terms, it conferred it conditionally.  And the reason that I contend that the net effect analysis comes in is because in assessing whether or not there is a burden on informed choice, the right should not be assessed as an absolute one, it should be assessed in the context of the conditions.

BEECH-JONES J:   Mr Solicitor, say you had a ballot paper that said:  if you provide your tax return to the Electoral Commission, we will put your name on it, but if you have not, you have to be written in, you would say that is okay because that is a net effect, as opposed to saying that is a differential treatment of the candidates that can only be justified by looking at the provision of a tax return.  Is that kind of where we get to?  It might be a hard one.

MR DONAGHUE:   I do not – I am not sure that I can answer the hypothetical without enough underlying information about the scheme.  I am relying on the net effect here because our friends are only indirectly challenging the thing that they – well, our friends want a benefit under 214 that they can only get as a registered party, and so, they have gone backwards down the pipe to challenge the registration requirements.

All I am putting to your Honours is that before you can invalidate a registration requirement, you need to assess the role that that registration requirement plays in relation to elector choice.  And it is distorting, in our respectful submission, to just focus on the link between 153(3) and 214 without focusing on any of the other things that 153(3) does that impact upon electoral choice, because otherwise you will invalidate 135 without taking account of the other effects it has on electoral choice.

BEECH-JONES J:   I am not questioning the point of validating, I am questioning where in the point of determining whether it is valid:  is it the burden stage or the justification stage?  Bearing in mind that the language is not, you choose, it is the voters’ choice, not the rights of the party, as it were.

MR DONAGHUE:   I do not want to retreat unreasonably to authority, but I am also conscious of time ‑ ‑ ‑

BEECH‑JONES J:   I am sorry.

MR DONAGHUE:   Not at all, your Honour.  There have been two cases in this Court which have involved challenges to changes to registration requirements for parties, in both of which the burden was said to be the effect on the ballot paper, because of 214.  In both of them, the Court has upheld the law on the ground that there was no burden.  Both Ruddick and Mulholland were decided on that basis.  It is true – Mulholland was unanimous but Chief Justice Gleeson and Justice Kirby upheld the law at the latter stage, but the other five members of the Court said no burden, and the majority of four in Ruddick expressly said no burden.

Can I take your Honours to those.  In effect, as I understand Ruddick, which I am about to take your Honours to, the reason was consistent with what I have just been putting to the Court.  Could you go to Ruddick (2022) 275 CLR 333, which is volume 5 tab 17. I am going to focus on the joint reasons of Justices Gordon, Edelman and Gleeson with whom Justice Steward agreed. Early in the joint reasons there is a reference to – just as a matter of history – at 112 and 113 to the history of ballot papers not including party endorsements prior to 1983 and coming in with the scheme of registration. So, it is the same underlying legislative history that your Honours are now looking at.

If you could then go on to 148, discussing Rowe, Roach and Murphy, there is a reference to the direct choice requirement and, in effect, to the two steps of the analysis:  step one, is there a burden – there, they are talking about the franchise, but their Honours go on to talk about informed choice shortly – and, if there is a burden, then, question two, is there “a substantial reason” for that burden:

being a reason which is “reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system –

Our friends, I think, showed you those paragraphs, then passed over 149.  At 149, the joint reasons emphasised that in assessing substantial reason – so, at the second limb of the two‑limb test:

it must be borne in mind that the requirement of “direct choice by the people” was intended only as a basic structural requirement, or the “bare foundations of the electoral law”.  This deliberate design of the Constitution –

leaves to Parliament:

a wide leeway of choice, even concerning the fundamental features –

Then, in the next paragraph, at 150, their Honours say:

For the same reasons, an overly broad approach restraining Parliament’s leeway of choice should . . . be taken in determining the
threshold issue, namely, whether the plaintiff can establish ‑ ‑ ‑

GORDON J:   It is:

should not be taken –

MR DONAGHUE:   Sorry:

an overly broad approach . . . should not be taken –

Sorry, your Honour.  Yes.  That is important.

STEWARD J:   It is Friday afternoon.

MR DONAGHUE:   It is Friday afternoon, your Honour.  The point is, you adopt an approach that respects Parliament’s wide leeway of choice at both limbs of the test, at the substantial reasons limb and at the burden limb.  Then your Honours refer to Murphy, where:

four members of this Court held that there was no burden on the franchise –

by the change there:

The plaintiffs’ submission that there was a burden on the franchise involved impermissibly isolating one aspect of the voting system . . . and considering it separately from the remainder of the system.

Footnote to paragraph 321 of Murphy, which is in your Honour Justice Gordon’s reasons where your Honour made that very point in Murphy.  Your Honour also in Murphy – and you do not have it in the book, but if I could refer you, in addition to 321 footnoted there, to paragraph 328 where Justice Gordon explained that individual provisions form part of a “coherent structure” and:

Isolation of the impugned provisions is artificial and, in this case, distracts attention from consideration of the whole structure.

That was the point I was trying to make in the exchanges with your Honours earlier, that one cannot just isolate out particular provisions and conduct the informed choice analysis, separating them from the integrated scheme of which they form part.

In paragraph 151, the plurality in Ruddick noted that Ruddick was about a “different dimension”.  It was not about the direct choice burdening the franchise, it was about the choice aspect of that.  And in the middle of the paragraph:

The constraint implied by the requirement of choice is that the people must have the ability to make an informed choice, which restricts Parliament’s ability to constrain the extent to which the people can “convey and receive opinions, arguments and information concerning matter intended or likely to affect voting”.

We do not dispute that.  That same informed choice dimension was also at issue in Mulholland. But then, at 152, the plurality returned to the leeway point:

the restriction . . . must not be applied in an over‑broad manner which would fail to respect the constitutional design of leaving to Parliament the choice of how to legislate for every aspect, except the bare foundations, of the electoral system.

Your Honour Justice Steward will recall you substantially agreed with the joint reasons, but perhaps put that point even more strongly than the plurality at paragraph 174.  Your Honour said there:

this Court has traditionally deferred to the legislative branch in the case of laws regulating federal elections.  That is because the concept of “representative democracy” comprehends a large range of virtues and possibilities.

Then you said, a few lines down:

The invalidation of “Parliament’s work” must therefore be reserved to those more extreme laws which offend the most essential of democratic values and systems.

We, somewhat rhetorically, ask, can it be said that a provision that stops a party that voluntarily registers re‑registering until the next election is a more extreme example of Parliament’s work?  And we say, clearly not.

BEECH‑JONES J:   But, Mr Solicitor, do you say paragraphs 152 and 153 went to the burden or the justification?

MR DONAGHUE:   They went to the burden, your Honours, and I will show your Honours that right now, actually.  So, if we can pass over the implied freedom discussion and go to 161, under the heading is there a “burden on electoral choice or the freedom”, the threshold issue is, for both parts of the challenge, whether the:

Amendments placed some burden on, respectively, informed electoral choice or the ability to communicate . . . Both of Mr Ruddick’s submissions fail at this threshold –

issue, which is how it is – it is also identified as the “threshold issue” back in 148.  So, the majority in Ruddick, in my submission, clearly decided the case on the basis that there was no burden imposed.  The reason for that, in 162, in my submission, is because of the likely overall effect of the change.  Indeed, at the end of 162, the Court says:

The likely effect of the narrow restrictions imposed by the 2021 Amendments is, overall, to improve the clarify, and hence the quality, of electoral choice and communication on government or political matters.

That was the overall effect, because while it stopped the party having its name on the ballot under 214, that was overall beneficial, because it avoided confusion by similar names on the ballot.

GAGELER CJ:   It was said by your opponent that 162 needs to be read with 140, so the baseline is existing confusion.

MR DONAGHUE:   It is certainly the case that the factual premise in Ruddick was that there was a problem with confusion that needed to be addressed.  In my submission, that goes more to the justification – had it been reached, that would have gone more to the justification step:  was there a problem that needed to be addressed and did this law address it sufficiently?  At the burden stage, in my submission – I accept that it is factually a little different ‑ ‑ ‑

EDELMAN J:   It goes to both, does it not?  I mean, the confusion tells you what the package is – that, rather than just the single provision, what the whole of the package is that you need to be looking at in order to determine whether there is a burden.

MR DONAGHUE:   I accept that that is so, your Honour.  But what you certainly do not do is just look at the fact that the party’s name cannot be on the ballot paper and say that is a burden on informed choice.  That is clearly not what is being done in 162.

GORDON J:   Or in 163 to 165.

MR DONAGHUE:   Indeed not, indeed not.  That is really the point that I need to make, because it is the same ballot paper affected in that case and this case, but you look at what goes on the other side of the balance.  So, the assumption ‑ ‑ ‑

BEECH-JONES J:   That was a case about, will it be this party or that party, and could it confuse between them on the ballot paper?

MR DONAGHUE:   But the practical effect was that ‑ ‑ ‑ 

BEECH-JONES J:   But they did not get on.

MR DONAGHUE:   ‑ ‑ ‑ the Democrats who had been registered under the name “the Liberal Democrats” were no longer going to be entitled to appear as the Liberal Democrats.  So, it was an involuntary consequence on their capacity, and yet it was held to fail at the threshold stage.

Our submission, applying that part of Ruddick, is that insofar as – and I take the Chief Justice’s point that it is not really squarely in issue in this case, even though the whole section is challenged, but insofar as we are concerned with avoiding confusion by similar or misleading party names, which is one of the limbs of 135(3), the reasoning is directly applicable.  But, as to the transparency purpose, consistently with the plurality’s reliance on Justice Gordon’s statements in Murphy, one cannot just look at 135(3) and 214, you need to look more broadly, for the reasons I have developed.

As I have said, in my submission, the proper counterfactual is not one that should assume that the effect of 135(3) is that party names will not appear on the ballot.  Looking at the scheme as a whole, the likely effect is that party names will appear on the ballot, because parties will choose to stay registered and that they will, in doing so, accept the cost of compliance with the transparency purpose.

So, if that submission be right, voters get the information, and they get information about party affiliation, and they get the information about financial disclosure – and that is clearly productive of informed choice.  The effect of the scheme as a whole should not be distorted by the unexplained decision of the United Australia Party to have deregistered and sought re‑registration again in the same period.

If we are wrong about that and we need a substantial reason for the burden, essentially for the reasons I have already given, we submit that we have one.  The transparency purpose is strong.  It is a burden that arises only upon – as Justice Steward put to me – a party that chooses to accept it.  The provision is neutral in its operation; it gives no preference to incumbents or has no differential operation based on political viewpoint, you just apply to any party that seeks voluntary deregistration.  So, if we need a substantial reason to support the validity of the provision, we submit that it is amply present.

Can I turn then to the implied freedom.  I have already foreshadowed part of what I wanted to say about that and Mulholland.  Can I, before coming to the detail of Mulholland, say something about rights and liberties, because, in my submission, when Justice McHugh spoke in Levy about rights – and his Honour occasionally, in the relevant part of the discussion, talked about rights or privileges – his Honour was not speaking of a legally enforceable right.  He was not suggesting that the implied freedom can only be burdened if it cuts back a legally enforceable right.  In our submission, he was using the concept to include the liberty under the common law to do anything that is not prohibited.

The Chief Justice used that kind of language in Brown at 146 in a paragraph that my friend went to, and in your Honour the Chief Justice’s dissent in Ruddick, you phrased it as:

the exercise of the liberty of communication which exists at common law.

We do not dispute that if a law burdens the liberty of communication that exists at common law, then that will be a burden for implied freedom purposes that will need justification.  In Hohfeldian terms, a liberty or a privilege – same thing.

Our submission, as I foreshadowed in answering a question from Justice Edelman, is that while there is obviously a common law liberty to speak at political rallies, to hand out corflutes, to put up posters – except in places where that is unlawful by reasoning of planning or other laws – to distribute how‑to‑vote cards, to contract with newspapers or television stations to run political advertisements, they are all things that a candidate can do because the common law says you can do anything that is not specifically prohibited, and a law that sought to prohibit any of those things would need to be justified because it would impose a burden.

But, there is no common law liberty of communication to have your party affiliation on a ballot paper because the content of the ballot paper is determined exclusively by the statutory provisions and, to the extent that 214 and 214A contemplate that party affiliation might appear on the ballot paper for some people, from the outset they have only ever conferred that entitlement conditionally.  Our essential submission and, we submit, the explanation for Mulholland, is that the conditions that govern the conferral of a statutory entitlement are incapable of burdening that entitlement.  They define ‑ ‑ ‑

EDELMAN J:   That may be right if what you are really saying is it is conditionally as part of a package.

MR DONAGHUE:   Yes, that is what I am saying.

EDELMAN J:   But that is a little bit different from saying that the Levy principle is only concerned with common law liberties.  There might be, for example, a benefit that is conferred as a result of some other legislation for a completely different purpose, and to detract from that could then burden the implied freedom.  If that is right, then it really does seem to be pretty much the same analysis as you were engaging in before, when you were talking about the first ground.

MR DONAGHUE:   So, there is a possibility, I accept, that a preexisting statutory right not conferred conditionally that is then cut back by a different and subsequent law might attract a different analysis than the conditional referral rights that I am urging upon your Honours.

EDELMAN J:   Even, as Mr Villa says, in the same statute or the same legislation.

MR DONAGHUE:   An amendment to the same statute over time conceivably might do that.

GORDON J:   One way some of us have described it is as an incremental burden.

MR DONAGHUE:   Yes.

GORDON J:   So, one looks at the increment, and the increment in the example you just posited is that one has an unconditional statutory right which is then subject to amendment, and one then asks oneself, in the context of the statutory scheme, whether that incremental burden is justified.

MR DONAGHUE:   The reason I am being slightly cautious is that – and I should immediately say the complexity that I am about to address does not arise here, because 135(3) and the limit on 214 to registered parties has always been there, so from the moment the right was created, it was subject to the condition that is now in place, so I am dealing with a complexity that is not this case.

BEECH‑JONES J:   Just before you do, on that reasoning, if you had set up a statutory body to create a representative body for a group of people in a particular area or a particular purpose, and you had an election for that, the ballot paper for that – there would be no question of the implied freedom engaging in anything to do with the ballot paper for that election?

MR DONAGHUE:   It creates the new body and says, these kinds of people, or – this is the ballot paper for it?

BEECH‑JONES J:   This is the ballot paper, people can apply to be candidates, but the only candidate will be our named candidate.  Then, your rights example, no question of the implied freedom?

MR DONAGHUE:   Insofar as we are concerned with the form of that ballot paper, I think that is right, your Honour, for the same reasoning – if the implied freedom was relevant at all to the ‑ ‑ ‑ 

BEECH‑JONES J:   It might be a ‑ ‑ ‑

MR DONAGHUE:   It might depend on what sort of statutory body you are talking about.

BEECH‑JONES J:   The broad political or social interests of the group.

MR DONAGHUE:   Yes.

BEECH‑JONES J:   I am sorry, I cut you off.

MR DONAGHUE:   So, to come back to the questions that a number of your Honours were asking me about amendments to the same statutory scheme – and this is part of the debate about how one reads ACTV – the reason that I was being cautious is that in Mulholland, one had, as your Honours know, two impugned provisions:  the 500 rule and the no overlap rule.  The 500 rule had been there from the outset.  The no overlap rule was added later.  Both of them were held not to burden the implied freedom at all, which suggests that where the right to appear on the ballot paper is conditional upon being a registered political party, Parliament had at least some latitude to adjust the definitional requirements for registration without burdening the implied freedom.  Because if it was different for the original right and the amendment, then the 500 rule and the no overlap rule should have been addressed separately.

Similarly, in Ruddick, it was a new provision about overlapping party names.  Again, it affected registration entitlements but withheld not to burden the implied freedom.  So, again, the outcome in both of those cases suggests that it is not any change to the pre‑existing statutory requirement that will involve a burden – that there is some scope for Parliament, within the leeway of choice that is emphasised repeatedly in Ruddick, to adjust the registration criteria in a way that might affect the operation of the registration scheme without burdening the informed choice – sorry, without burdening the implied freedom.

I do not want to detain your Honours at any length with Mulholland, with which you are all familiar, but can I ask your Honours just to go to Justice McHugh’s reasons, particularly at paragraph 105, and following, which, in my submission, supports what I have just been putting to your Honours.

GORDON J:   This is what Justices Gummow and Hayne agree with at 184.

MR DONAGHUE:   Yes.  So, in my submission, Justices Gummow and Hayne – did your Honour say 186, 187 ‑ ‑ ‑

GORDON J:   I said 184.

MR DONAGHUE:   Yes, 184. 

GORDON J:   It is in that same area.

MR DONAGHUE:   Indeed.  So, Justices Gummow and Hayne, Justice Callinan at 337 and Justice Heydon at 354, in my submission, all reason in materially the same way but not in the same detail as Justice McHugh did.  His Honour’s reasoning at 105 through to 107, in particular, in my submission, supports what I have just been putting to you as to the significance of the conditional nature of the entitlement.  So:

The short answer to the claim that the challenged provisions burden political communications by the DLP to electors is that the restrictions are the conditions of the entitlement to have a party’s name placed on the ballot‑paper.  The restrictions do not burden rights of communication on political and government matters that exist independently of the entitlement.  Any political communication that is involved in the delivery and lodging of a ballot‑paper results solely from the Commission’s statutory obligation to hold elections and deliver ballot‑papers in the prescribed form –

And then, without reading it all, the first sentence of 106:

Only registered political parties may request –

Sorry, the second sentence as well:

Registration requires the party to meet other statutory requirements, such as appointing officers, having a constitution and complying with reporting obligations.

So, his Honour is noting the wider range of registration requirements.  Then he says at the end of 106:

Thus, the content of the freedom in respect of any political communication by means of a ballot-paper is commensurate with the scope of the entitlements granted by the provisions of the Act which regulate the making of the communication.

We read his Honour as suggesting that, because the entitlement to political party affiliation on the ballot paper was only ever conferred conditionally, there is no burden on that entitlement.

EDELMAN J:   There must be a backstop or a safety net, though, that exists.  On one view, that is what the passages in Ruddick that talk about “leeway of choice” are referring to.  You could not, for example, legislate to create an electoral system by a single package that involved a farcical notion of choice.

MR DONAGHUE:   No, I agree with that, your Honour.  That is why I am distinguishing between the two implications.  This reasoning, as we heave understood it, applies to political communication and says, the implied freedom not being a right but a limitation on legislative power, you have to find something to limit.  And Parliament does not limit a statutory entitlement by defining the conditions on which it is conferred.

But I do not disagree at all with what your Honour says to me, that you could not design a system even from the outset that was inconsistent with informed choice because that would collide with the other implication where you do not need to find a right or liberty to engage in communication of the relevant kind.

GAGELER CJ: Is the justification for implied freedom one that involves a different analysis in substance from the justification for the core of sections 7 and 24?

MR DONAGHUE:   Your Honour, I do not believe this Court has ever squarely resolved that question.  In the context of the informed choice limitation, the formulation is you need a substantial reason.  It may be that the appropriate answer – and the majorities of the court have never accepted the structured proportionality analysis that has been adopted in the implied freedom context as applicable to the informed choice requirement in Murphy.  I think an attempt was made to move that form of analysis into the informed choice, and it was not accepted.

Ultimately, the question is quite similar, in that one is asking:  once there is a burden, is it proportionate to an objective that is consistent with the constitutional system?  But because the burden analysis is different, for the reasons I have tried to develop, burden is much more readily established in the implied freedom context than ‑ ‑ ‑

GAGELER CJ:   I just find it difficult to accept, but ‑ ‑ ‑

MR DONAGHUE:   That the burden inquiry is different?

GAGELER CJ:   That it is more easily established in the penumbra than in the core of the operation in the provisions, but ‑ ‑ ‑

MR DONAGHUE:   The reason I say that is because we can all engage in political communication, unless specifically prohibited from doing so.  It is quite easy for a law to cut across our entitlement to engage in communication at that time, whereas when one comes to choice, where you are squarely within the context of the electoral system that has been created by the Parliament and the restriction is a restriction that is intended, respective of parliamentary leeway of choice to make sure that it does not transgress the boundaries of permitting a direct and informed choice, it is, in my submission – it is protecting a different part, a different system.  It is ensuring that a system that will necessarily be replete with trade‑offs nevertheless, as a whole, produces a direct and informed choice.

That is my explanation for the difference – that one is burdening a different thing, and that one is, in the context of choice, not dealing, really, with something that everybody has a common law entitlement to do separately from the statutory system, whereas in the context of communication you do.

GAGELER CJ:   Just one last question.  In substance, is your justification argument in this case ‑ ‑ ‑

MR DONAGHUE:   In this case, they are the same.

GAGELER CJ:   ‑ ‑ ‑ different as to the two ways?

MR DONAGHUE:   Yes.  In this case, they are – essentially, I do not really – I would not accept in the context of answering the question, is there a substantial reason that the Court needs to engage in the question, is there an obvious and compelling alternative that is less burdensome?  In my submission, all you have to do is ask:  if there is a burden on true choice, is there a substantial reason for it?  You do not need to go through those kinds of steps.

But the substance of my argument is that where one has a regime that only applies as a result of a voluntary deregistration decision that operates in a neutral fashion for a short period of time to promote transparency, that that provides both a substantial reason and a justification at the implied freedom.  So, there is no material difference in the substantive things that I rely upon.

I will not take you to it, but the quote from the key passage in Levy appears in Justice McHugh’s reasons at 104, and your Honours will note at the very bottom of the page on 223 of the Commonwealth Law Report, his Honour refers to an:

immunity from . . . laws that inhibit a right or privilege –

So, he is not confining that passage to affirmed common law rights.  That passage from Levy was endorsed by each of Justices McHugh, Gummow, Hayne, Callinan and Heydon.

EDELMAN J:   Endorsed as part of the dispositive reasoning of each of those judges?

MR DONAGHUE:   Possibly not Justice Callinan, but certainly the other four, in my submission.  In Ruddick, the plurality also referred to Mulholland and gave an explanation of the reasoning in that case as an additional reason, as we read your Honours’ reasons. So, there is the passages I have already taken your Honours to, particularly at 161 and 163, that record that Mr Ruddick failed at the threshold issue of establishing burden. Then, if you go onto 171, under the heading “The implied freedom of political communication was not engaged”, the plurality give another additional reason why Mr Ruddick failed. He fails:

for a further reason.  His submissions are indistinguishable from the basis upon which five members of this Court in Mulholland v Australian Electoral Commission upheld the validity of earlier amendments to the registration scheme . . . 

Like this case . . . Mr Mulholland . . .challenged two conditions for a political party to obtain registration and have its name printed on the ballot paper as contrary to the implied freedom –

Then, four lines down:

Each of McHugh J, Gummow and Hayne JJ, Callinan J and Heydon J expressly approved the reasoning of McHugh J in Levy v Victoria and held that the proof of a burden on the freedom of political communication required “proof that the challenged law burdens a freedom that exists independently of that law”.  Mr Mulholland’s challenge failed because the Democratic Labour Party had no right to be included on the ballot paper, independently of the provisions of the Commonwealth Electoral Act.

And there is a list of passages cited.  That, in my submission, is the conditional conferral of the right analysis.  So, one has both Mulholland and Ruddick finding no burden in a case changing the registration regime.

EDELMAN J:   You say, on the implied freedom point, we would need to reopen both Mulholland and Ruddick in order to find that there was a burden, in that respect.

MR DONAGHUE:   I do – a burden.  That is my submission.

GLEESON J:   When you say that there is no – you accept that 135(3) would be severable, but really that question of severability is irrelevant, because you say you cannot make a challenge to the invalidity of a condition of a broader entitlement.

MR DONAGHUE:   Yes, you never get to severability on it.  That is right, but your Honour anticipates exactly where I was about to go.  I should say, the reason I say it is severable – 135(3), that is – is because it would be quite surprising for a regime concerning the voluntary registration of political parties if a party could voluntarily opt in but then could never leave.  So, the choice that the Court would be looking at is:  if you invalidated the whole of 135, it could never leave except if it somehow managed to become compulsorily deregistered.

The alternative is that it could leave and it would be entitled to apply for re‑registration again within the same electoral period.  That would be more consonant with the system as a whole, as a voluntary system.  So, I cannot point to a parliamentary intention that the whole of 135 goes if the last subsection goes.  But I nevertheless, for the reasons I have developed, submit that subsection (3) plays a critical role in the overall system, because it requires continuity if you wish to obtain the benefits of registration.

The reason that I have said a couple of times that we do not embrace severance as the right framework, as opposed to looking at an integrated framework and the overall burdens on informed choice that it presents, is that if severance is the right question then that would suggest that, had the no overlap rule in Mulholland been held to be invalid, the entire registration scheme in Part XI would have been invalid, I think.

There is a question, I suppose, of severing exactly from what, but if the burden coming from 214 which entitled only registered parties to be on the ballot had – if that entitlement had been improperly excluded by a change in the registration conditions that was inseverable, one would need, in order to have produced the result in that case, to have said that the whole scheme was going to fall if that condition fell.  That, we submit, is just not a plausible reading of the judgment, and the same is true of Ruddick.

Indeed, in Ruddick, the whole case focused on the amending legislation rather than the underlying registration scheme, so that if the Commonwealth had failed in Ruddick, we submit that it is clear that it is the Amending Act – indeed, the three dissenting Judges in Ruddick held the amendments to be invalid; they did not hold the registration scheme to be invalid.  So, it cannot be the case that the burden analysis depends upon showing that the impugned provision will bring down the whole scheme.  But that is not to deny that the proper analysis requires, consistently with Ruddick at 150 and Murphy, an assessment of the effect upon political communication and upon informed choice that takes account of the fact that the provision does not operate in isolation.

Your Honours, I do not think I need to address you expressly on the reopening application.  My friend did not say anything orally about it and we have addressed it in writing, your Honours are well familiar with the criteria, but we submit nothing has been said that should persuade your Honours that the usual John‑type factors are satisfied in this case.  There was consistent reasoning in Mulholland and in the majority in Ruddick.  The Court built on those cases – Levy and Mulholland – in the incremental burden‑type cases that your Honour Justice Gordon mentioned to me earlier.

BEECH-JONES J:   Mr Solicitor, is it correct that Justice Steward’s judgment involves an adoption of Mulholland in Ruddick?

MR DONAGHUE:   Yes, because his Honour expresses agreement with the reasoning and orders of the plurality.

BEECH-JONES J:   His Honour expressed agreement with the conclusion about the effect of the Act, but otherwise referred to his Honour’s reasons in LibertyWorks.

MR DONAGHUE:   Sorry, your Honour, I will just find that.  So, a few lines up he says:

It is for that reason that I respectfully concur with the reasons of their Honours and agree with their answers to the questions –

So I read that, your Honour, as an endorsement of ‑ ‑ ‑

BEECH-JONES J:   And then the last sentence.

MR DONAGHUE:   Well, his Honour is there referring to the doubts that his Honour expressed in LibertyWorks as to the existence of the implied freedom, if I recall that correctly.  So, maintaining those doubts, but otherwise expressing agreement with the reading of the plurality, is my respectful submission as to how those reasons should be read.

I think, your Honours, I have, in the course of submissions, sufficiently – and in particular, in answer to your Honour the Chief Justice’s questions – said most of what I would need to say about justification in the event that your Honours get there in the implied freedom context.  There does not seem to be any challenge to suitability or adequacy and balance.  The whole of the argument really seems to be about necessity and the suggestion that there are obvious and compelling alternatives.

The very fact that the alternatives that were being proffered varied a little over the course of oral argument and included some not identified in writing suggests that there might be some doubt as to the obvious and compelling nature of them.  The main point seemed to be that one could impose, as a condition of disclosure, a conditional disclosure obligation as a condition of re‑registering and, in our submission, for some of the reasons that were raised in argument earlier, that is far from an obvious and compelling alternative that would be equally effective.

It would involve, potentially, the disclosure of information just before an election, as opposed to the ongoing disclosure that is required of political parties, which we submit is readily seen to be more useful from the perspective of informing electors as to their choices.  So, electors may have very little time to assess the information provided.  It may, in fact, impose a higher burden by discouraging the registration of political parties, particularly because they may not actually have the information that they are required to give about all of the sources of moneys that have been received over a period of time.

Even if they do have it, the need to go back and satisfy, retrospectively, disclosure obligations will undoubtedly make it harder for new parties to register, which just creates a different burden upon participation in the system, and so cannot be one that is said to be obviously more attractive.  It also does not address at all the confusion purpose.  A provision of that kind just would not help in addressing the operation of the second limb of 135(3).

GORDON J:   I had understood that it was put on the basis that you could leave that bit in and just take out the other bit.

MR DONAGHUE:   So, then your Honours are redrafting.

GORDON J:   As I understood the submission.

MR DONAGHUE:   In my submission, it would have to be quite a different provision, or it would have to leave part of 135(3) in place and then insert a different provision.  So, in our submission, if your Honours get to it – which, in our submission, of course, you should not – we submit that you should not be satisfied that there is any disproportion established.

As to discrimination, your Honours, it is not clear, following some questions your Honour the Chief Justice asked, whether it is actually put that there is a separate constitutional implication preventing discrimination even if the plaintiff fails on the informed choice and the implied freedom limb.  In our submission, your Honours would not get to that, for the simple reason that 135 is not relevantly discriminatory in any way.  It is not 214 that has been challenged, it is 135.  Section 135 applies equally to every registered political party, and it imposes exactly the same consequences on those parties if they make the choice – the operative fact that would cause any discrimination there is a choice made by the party itself.  It operates, viewpoint‑neutrally, to impose the same consequence on everybody.

So, if it is not discriminatory, your Honours would not get to the issue, but, in our submission, the proper analysis is that discrimination may well be relevant, if it did exist, to both of the other constitutional challenges.  Obviously, discrimination commonly features in implied freedom cases and one can readily see how it could feature in an informed choice case, as well.  Some of the examples debated in argument about distorted ballot papers and things illustrate the point, so I do not deny that discrimination might be legally significant in this area, but it is legally significant through one or

other of the two implications that your Honours have already identified, and there is no necessity to identify anything further.

Unless the Court has any questions, those are my submissions.

GAGELER CJ:   Thank you.  Ms Davidson.

MS DAVIDSON:   Your Honours, only two brief points in support of what the Commonwealth has said in respect of the implied freedom.  First, if one does reach the question of burden – and the New South Wales Attorney would submit, for the reasons that have been advanced in respect of the analysis in Mulholland that one would not, but if one does, it is of significance, in my submission, that the UAP, or, indeed, that section 135(3) applies in the context of voluntary deregistration. That is, in the context of a party that has brought the statutory consequences of deregistration upon itself by taking a decision to opt out of the system of benefits and associated burdens of registration status.

The UAP, in this particular instance, in 2022 has chosen to put itself in the position where the burden, if such burden arises, exists or is incurred.  That is, by taking that decision to withdraw itself from the system, and it is important in that context to have regard to – as my learned friend Mr Villa put it, it is the scheme that is important for the exercise of the choice and the analysis of the burden takes place in the context of the scheme as a whole.

Secondly, in respect of the Mulholland analysis and the question of whether the burden exists at all, your Honours have been taken extensively to Mulholland and to Justice McHugh’s analysis, in particular, at paragraph 105 to 107. All that I would seek to add to that is the consistency of that analysis with what Justices Gummow and Hayne set out in their reasons at paragraphs 179 to 183, expressly then agreeing at paragraph 184, as your Honour Justice Gordon pointed out, with the analysis of Justice McHugh and that there is no logical inconsistency in any of that analysis as between that and what Justice McHugh put.

Unless I can be of further assistance, those are the New South Wales submissions.

GAGELER CJ:   Thank you.  Mr Villa.

MR VILLA:   Your Honours, there has been some emphasis placed, both by the Commonwealth and the intervener, about the voluntary conduct of the United Australia Party in choosing to take itself outside of the registration scheme.  In our submission, that emphasis is misplaced.

It tends to disregard one half of the communication process.  That is, the freedom of communication is not just concerned with the communicators but it is also concerned with the ability or capacity of those who are being communicated to, to receive information.  There is no reason, in our submission, why their position should not be factored into account in determining whether or not there is a burden and whether or not the burden is justified simply because the communicator has, by voluntary conduct, achieved a particular result.

One of the difficulties with some of the language is that when one is talking about burden – and this is particularly so in the informed choice aspect of the case – again, the focus on burden seems to be a focus on the conduct of the UAP and the inability of the UAP to communicate to potential electors as the result of its voluntary conduct.  But, again, the importance of the informed choice is not just the ability to communicate ideas from the UAP to others, it is the ability of the electors to receive information that will be relevant to the exercise of their electoral choice.  That is why it is not simply a question of burden on informed choice, it is a question of whether that informed choice is distorted or otherwise impaired.

STEWARD J:   So, can I ask you, if we are looking at it from the perspective of the voter, would there still be a burden if the UAP had decided, whilst registered, not to ask the Electoral Commissioner to put its party name on ballots?

MR VILLA:   Well, there would be an imperfection of information, I accept that.  But, your Honour, where that might come about is that is not necessarily a result of the scheme that has been implemented but the way in which the conduct interacts with that.

STEWARD J:   The scheme gives the UAP the choice as to whether it wishes to communicate or not.

MR VILLA:   Yes, I accept that, your Honour.

STEWARD J:   Why is 135 not also a choice that the UAP could make or not make?

MR VILLA:   Well, can I address that in this way.  The conditional entitlement that has been emphasised by the Commonwealth, in our submission, has two different aspects.  One is a condition that relates to the characteristics of the parties which, it is said, within the leeway of choice open to the Parliament, are suitable for registration and obtain the benefits and – we accept – the burdens of that registration process.  That sort of condition, in our submission, is qualitatively different to the provision that we are engaged with today.

Your Honours, to describe the non‑voluntary deregistration as a condition of the entitlements under the Act is, in our submission, adopting a self‑fulfilling mode of analysis that distorts the concept of condition to breaking point. There is a qualitative difference between the 500 rule and the no overlap rule, which are criteria directed towards establishing suitability for obtaining registration. Section 135(3), in its operation says nothing about the suitability or otherwise of a political party for registration.

Another difficulty, your Honours, in our submission, is the analysis adopted by the Commonwealth has the potential and the tendency to promote matters of form over substance.  What we are looking at is the practical working out, in the real‑world political system in which these provisions operate and determining whether or not the quality of information that is made available to electors is burdened or impaired or distorted.

Whether that comes about as a result of conditional entitlement or some particular prohibition, in our submission, does not matter.  The fact is that, as we have submitted, the burden exists simply by reason of the operation of 135(3) in the particular scenario with which we are engaged.  Your Honours, in Brown v Tasmania at paragraph 215, your Honour the Chief Justice said that:

Where determination of the purpose of a law is controversial, resolution of that controversy can be assisted by considering how closely the legal operation of the law conforms to an asserted purpose.  In an extreme case, the disconformity might be so great as to admit of the conclusion that the law cannot be explained as having the asserted purpose.

Now, one of the propositions that we put is that this particular scheme that has been adopted permits of so many anomalies in the way that it might operate, in terms of promoting or not promoting disclosure, that the disclosure regime cannot be an explanation for section 135(3), and your Honours would reject that as a purpose of that provision.

Your Honour the Chief Justice asked me about the purpose of section 136(2). We accept the Commonwealth’s submission that it has an anti‑rollover purpose. We also submit that the effect of the part of the provision that prevents registration of a different party under the same name or a similar name, is really an anti‑phoenixing provision which is in furtherance of the anti‑rollover purpose of section 136. Your Honours will have seen that it was that provision which, in the course of amendment of the Amending Bill, became section 135(3).

Unless your Honours have any further questions, those are the submissions of the plaintiffs.

GAGELER CJ:   Thank you, Mr Villa.  The Court will consider its decision in these two matters.  The matters will be listed for the pronouncement of orders at 10.00 am next Wednesday, 12 February.  The Court will now adjourn until 10.30 am on Tuesday, 11 February.

AT 3.45 PM THE MATTERS WERE ADJOURNED
UNTIL WEDNESDAY, 12 FEBRUARY 2025